Oral Arguments on Koble Investments v. Marquardt Case To Be Heard by the Wisconsin Supreme Court on September 9, 2025.

Next Tuesday, September 9, 2025, at 9:45 a.m., the Wisconsin Supreme Court will hear oral arguments on Koble Investments v. Marquardt. The attorneys will argue the issues in the case and be peppered with questions from the Justices. The result of this case will be significant to the rental industry, all housing providers, and those who rent from them. There is no set time frame by which the Court must provide a written decision after oral arguments. For the sake of the many landlords and property management companies with class action lawsuits pending against them throughout the state, hopefully, the Court will move swiftly.

It is believed that the Court will decide, at a minimum, two key issues. First, does the Wisconsin Consumer Act (WCA) apply to residential landlord-tenant relationships, and if so, how are the WCA and Wisconsin’s Landlord-Tenant laws to be blended? Second, if a tenant alleges that their rental document contain one of the “10 Deadly Sins” (or more accurately, violate one of the ten things that should not be included in residential rental agreement as outlined in Wis. Stat. 704.44 and Wisc. Admin. Code ATCP 134.08), is the tenant entitled to the return of all rent paid during the tenancy (disgorgement) plus double damages plus their attorney’s fees without having to prove a causal connection between the alleged violation and their alleged harm.

Please note that the above issues have been simplified considerably for this blog post.

In addition to the written briefs submitted by the parties, the Wisconsin Supreme Court permitted briefs from five groups, including coalitions of real-estate industry associations and legal-aid/advocacy organizations, reflecting the case’s broad policy impact on landlords and tenants.

I have included links to the many briefs, including the “Friends of the Court” (amici briefs), for those who want to delve into the specific issues and arguments. At the very end of this blog post, I have provided you with a link to the live stream so that you can watch the oral arguments on Tuesday, without having to travel to Madison.

CCAP: The link below will take you to the entire appellate history of the case and provide you with access to the briefs of all of the parties.

Koble Investments CCAP Case History

Amici Briefs: For ease of access, below are the links to the amici briefs

Amicus Brief of Coalition for Maintaining Affordable Housing, UA and Appendix

Amicus Brief of North Central States Regional Council of Carpenters

Amicus Brief of Wisconsin Realtors Association, et al.

Amicus Brief of Wisconsin Builders Association

Amicus Brief of Legal Action, et al.

Below is a link to live stream Tuesday’s oral arguments, if you want to watch. I plan to be there in person, observing.

Supreme Court Oral Argument Live Stream Audio

When does the 21-day period begin for security deposit returns or accounting purposes?

By Atty. Gary D. Koch of Pettit Law Group S.C.

When a tenant vacates at the end of a tenancy, the landlord must return the tenant’s security deposit and/or account for any funds withheld from the deposit. This blog post focuses on the timing of that return/accounting. Tristan has drafted prior blog posts that discuss the security deposit accounting letter itself:

How to Draft a Legal 21-Day Letter

The Ever-Important Security Deposit Transmittal Letter (or 21-Day Letter)

The deposit or accounting must be “delivered or mailed” to the tenant, per Wis. Stat. § 704.28(4)(c), within 21 days of the latest of:

• If the tenant vacates on the termination date of the rental agreement, the termination date of the rental agreement;

• If the tenant vacates or is evicted before the termination date of the rental agreement:

  • the date on which the tenant’s rental agreement terminates; or

  • if the landlord re-rents the unit before the tenant’s rental agreement terminates, the date on which the new tenant’s tenancy begins; or;

• If the tenant vacates or is evicted after the termination date of the rental agreement, the date on which the landlord learns that the tenant has vacated the premises or has been removed from the premises under s. 799.45 (2).

The above statutory section addresses all three potential vacate dates concerning the rental agreement termination date – on, before, and after. Please note that determining the actual “termination date” of a rental agreement does, in some instances, have some nuance, but that’s a discussion for another blog post.

Here are some practical examples of the above timing:

• If you have a tenant on a term lease that ends on September 30th and the tenant vacates on September 30th, the counting of the 21 days begins on September 30th, and you have through October 20th to return and/or account for the security deposit.

• If you have a tenant on a term lease that ends on December 31st, and the tenant vacates on September 30th, you must make “reasonable efforts” to mitigate the tenant’s damages by attempting to re-rent the rental unit. 

  • If you are unsuccessful in re-renting the unit despite reasonable efforts, the counting of the 21 days begins on December 31st, and you have through January 20th to return and/or account for the security deposit.

  • If you successfully re-rent the unit for November 1st, you have through November 21st to return and/or account for the security deposit.

• If you have a tenant on a term lease that ends on September 30th, but the tenant holds over and does not vacate until October 15th, the counting of the 21 days begins on October 15th, and you have through November 4th to return and/or account for the security deposit.

Note that, in all the above examples, and in every circumstance, if you begin counting the 21 days from when the tenant vacates, you should always be in compliance with the statutory timing of the security deposit/accounting return.

It should be noted that this blog post focuses on the latest (or last) day that you can send the deposit and/or accounting and comply with the law. There is absolutely nothing that precludes you from sending the deposit or accounting early.  It is highly recommended that, to avoid any potential issues, you should deliver or mail the security deposit or accounting as early as possible.  Failure to do so can be an expensive mistake. 

Finally, the law does not require you to list all amounts that the tenant owes you within 21 days.  Rather, it only requires you to account for how the security deposit was applied within 21 days.

This blog post was drafted by Atty. Gary D. Koch of Pettit Law Group S.C.

Update on the Koble Investments vs. Elicia Marquardt Case at the Wisconsin Supreme Court

Blog post written by Atty. Gary D. Koch of Pettit Law Group S.C.

If you are a landlord in Wisconsin, you’ve no doubt heard about the Koble Investments case now pending before the Wisconsin Supreme Court. If you haven’t (or would like a refresher), please read this prior blog post regarding the Court of Appeals decision. Since the decision was published, Koble successfully petitioned the Wisconsin Supreme Court to review, and hopefully overturn, the Court of Appeals decision.

In the Supreme Court, both Koble and Marquardt have filed their briefs laying out their arguments in the matter:

Koble’s Primary Brief

Marquardt’s Response Brief

Koble’s Reply Brief

Several interested entities, who are not parties to the action, have asked the Supreme Court to allow them to file Amicus, or “friend of the court”, Briefs to help guide the Supreme Court through the complicated issues and their potential ramifications on Wisconsin’s Landlord / Tenant landscape. These entities include a conglomerate comprising the Wisconsin Realtors Association, the Rental Property Association of Wisconsin, Inc., the Apartment Association of Northeast Wisconsin, Inc., the Fox Valley Apartment Association, Inc., and the Kenosha Landlord Association, Inc. This conglomerate also filed an Amicus brief in support of Koble’s request that the Supreme Court review the Court of Appeals decision.

The Wisconsin Builder’s Association, North Central States Regional Council of Carpenters, Coalition for Maintaining Affordable Housing, UA, and another conglomerate comprised of the Legal Action of Wisconsin, Inc., University of Wisconsin Law Schools Economic Justice Institute, End Domestic Abuse Wisconsin and the Wisconsin Coalition Against Sexual Assault have each also filed requests with the Court to file Amicus Briefs. The Supreme Court granted permission to all five groups to file Amicus Briefs and set a deadline of June 9, 2025, for all of the briefs to be filed.

After June 9, the Supreme Court will likely schedule the case for oral argument, where the parties’ attorneys will present their arguments to the Court and field questions from the Justices regarding their positions. After oral argument, the Supreme Court will issue an Opinion. There is no time frame for the Court to schedule oral argument or issue its Opinion, so we will continue to monitor the case and provide updates as it progresses.

Blog post written by Atty. Gary D. Koch of Pettit Law Group S.C.

Can A Landlord Require A Tenant To Provide Written Notice To Vacate Prior To The End of A Lease?

The answer to the above question is that “it depends.”  Specifically, it depends on how the rental agreement is drafted.

Scenario 1

If a lease for a specific term just ends, any language requiring a tenant to provide written notice to the landlord if the tenant intends to vacate at the end of the lease will probably not be enforceable.

Why? Because both parties know at the outset, when they signed the lease for a specific term, that the lease does not contain any language about the lease continuing after the initial term, and as such, it just ends. So, both landlord and tenant should understand that unless they enter into a new rental agreement prior to the ending of the initial lease term, that the tenant must vacate by the end of the lease term.

Scenario 2

Now, if a lease for a specific term is drafted so that it automatically renews for another like term or automatically converts to a month-to-month tenancy at the end of the initial lease term, you have a completely different situation than the one referenced in Scenario 1.  In this situation, the lease does not just end; it either auto-renews (for the same lease term) or auto-converts (to a month-to-month tenancy), and as a result, the lease contains language addressing the continuation of the tenancy beyond the initial lease term.

Under Scenario 2, the landlord does not know what the tenant will do at the end of the initial lease term.  The tenant could choose to vacate at the end of the term or continue to reside in the rental unit, because the lease language references a continuation.  So, if the landlord does not know what the tenant intends to do at the end of the initial lease term, it is reasonable (and enforceable) to require the tenant to provide the landlord with written notice as to what s/he will do.

Unfortunately, some landlords do not understand the important distinction between these two different scenarios, which can result in the landlord being placed in a precarious situation that might end with the tenant obtaining a money judgment against the landlord.

Scenario 1 - Recommended Best Practice for Landlord

If your lease is written as described in Scenario 1, where it just ends at the end of the lease term, the recommended best practice for the landlord to follow would be to have a reminder in your calendar approximately 90 days before the lease ends.  The landlord should now determine, assuming it is a market-rate property, whether or not the landlord wants to continue renting to the tenant after the lease ends.  If the landlord does want to continue the tenancy, the landlord and tenant should communicate and decide how they want to continue the tenancy and then enter into a new rental agreement, whether that be another lease for a term or a month-to-month periodic tenancy.

If the landlord decides that the tenancy over the initial lease term was problematic and as a result the landlord does not wish to continue the tenancy than the landlord should notify the tenant, in writing, that the tenancy will not continue beyond the initial lease term and that the tenant will need to move out on or before the last day of the lease term.  In a market-rate rental property, a landlord is allowed to non-renew a tenant’s tenancy for any reason or no reason as long as the reason is not discriminatory or retaliatory.  So, a landlord needs to understand this and make sure that it has sufficient documentation in the tenant’s file to support the non-renewal and defend against any claims by the tenant that the non-renewal was for discriminatory or retaliatory reasons.

While it is not legally required that the landlord provide the tenant with a new rental agreement or a notice of non-renewal, it is best practice to do so.  If a landlord fails to do that, it will have a confused tenant who is not prepared to vacate and locate new housing and then “holds over” improperly.  It is not in the best interest of the landlord or the tenant to be stuck in such a situation.  So, best practice encourages a landlord to proactively alert the tenant of his/her options after the lease term ends.

Scenario 2 - Recommended Best Practice for Landlord

Even if the landlord’s rental agreement is drafted in such a way that it either auto renews or auto converts, and the landlord sent the separate written notice reminding the tenant of this as required per Wis. Stat. 704.15, it is still to the benefit of the landlord to touch base with the tenant to confirm the tenant’s intentions at the end of the lease term. While it is not legally required, it would be in the landlord’s best interests to understand what the tenant will do, so the landlord is not surprised and can pivot as needed.

Conclusion

So, what is the best option for a landlord?  Should it draft its lease like in Scenario 1 and have it just end?  Or should the landlord draft it like in Scenario 2 and have it automatically renew for another like term or automatically convert to a month-to-month periodic tenancy after the initial term? 

There is no correct answer.  There are pros and cons under both scenarios. A landlord must weigh the positives and negatives and decide which situation the landlord prefers. 

One thing I have learned over almost 30 years of representing landlords and property management companies is that there is no legal way to combine the two scenarios so that there are only positives and no negatives. If I had $1 for every time that I have been asked that question . . . you know how the saying goes.

Take care and Happy Landlording.

T

How Are Landlords Affected Now That The Consumer Financial Protection Bureau Has Been Told to “stand down from performing any work task” by the President?

This blog post is authored by Atty. Gary D. Koch of Pettit Law Group S.C.

The Consumer Financial Protection Bureau (CFPB) was created in 2011 primarily in response to the 2008 financial crisis and recession. It has been tasked with protecting consumers from unfair financial practices from banks, lenders, other financial companies, and, yes, even landlords. The CFPB was one of the agencies charged with enforcing the CARES Act, and has been active in regulating tenant screening processes.

Earlier this February, the Trump administration ordered that the CFPB’s employees “stand down from performing any work task.” The Bureau’s webpage currently provides a “404: Page not found” message (although the links from the home page, such as “Submit a Complaint” remain active). It is unclear whether any submitted complaint will garner any attention.

From a landlord’s perspective, though, this may have little immediate impact. All of the previously enacted statutes, rules, and regulations remain in place, at least for now. CFPB regulations have not been repealed. The CARES Act is still on the books. Other federal agencies (like the FTC and Department of Justice) still have jurisdiction to pursue landlords for unfair business practices.

The CFPB’s deactivation, though, signals a trend toward reducing and deregulating consumer protections. There may be more action to come.

This federal trend has yet to make it to the state level. The Wisconsin Department of Agriculture, Trade, and Consumer Protection remains active. State Courts are still the venue for evictions and can enforce the CARES Act by dismissing an improperly noticed eviction. Koble has emboldened tenant advocates, although the Wisconsin Supreme Court just accepted the case. However, it is still a good time to be a careful landlord.

The current administration’s philosophy to shrink the federal government is undoubtedly something we will keep our eyes on! We will keep you updated.

This blog post is authored by Atty. Gary D. Koch of Pettit Law Group S.C.

Update On Notices Available To Wisconsin Landlords In Residential Tenancies

Written by Atty. Jennifer Hayden of Pettit Law Group S.C.

By statute, there are several types of notices that a landlord can serve on a tenant if the tenant commits a breach of their Residential Rental Agreement or when the landlord wishes to terminate the tenancy. If your Residential Rental Agreement with the tenant specifies something different, you would want to use the longer notice period.

Most of these notices can be used in periodic tenancies (such as a month-to-month tenancy) as well as a lease for the term (such as a 12-month lease) but under different circumstances. Please be aware that some notices can only be used in periodic tenancies, while others can only be used in leases for term. Most of the notice types cannot be used in a lease for over one year unless the landlord and tenant agree in writing, usually in the Rental Agreement, that specifies that the landlord can serve either a 5-day or 14-day Notice, which we refer to as the “saving language.”

5-DAY NOTICE TO PAY RENT

• Lease for Term (i.e., a lease for a term of one year or less or leases for more than a year with “saving language”)

  Yes (Sec. 704.17(2)(a), Wis. Stats.)

• Periodic Tenancy (i.e., month-to-month)

Yes (Sec. 704.17(1p)(a), Wis. Stats.)

14-DAY NOTICE TERMINATING TENANCY FOR FAILURE TO PAY RENT

• Lease for Term (i.e., a lease for a term of one year or less or leases for more than a year with “saving language”)

Yes, but only if the tenant was served with a 5-day Notice To Pay Rent within the prior 12 months (Sec. 704.17(2)(a), Wis. Stats.)

• Periodic Tenancy (i.e., month-to-month)

Yes (Sec. 704.17(1p)(a), Wis. Stats.)

5-DAY NOTICE TO CORRECT BREACH (other than for non-payment of rent) OR VACATE

• Lease for Term (i.e., a lease for a term of one year or less or leases for more than one year with “saving language”)

Yes (Sec. 704.17(2)(b), Wis. Stats.)

• Periodic Tenancy (i.e., month-to-month)

Yes (Sec. 704.17(1p)(b)(1), Wis. Stats.)

14-DAY NOTICE TERMINATING TENANCY FOR BREACH (other than non-payment of rent)

• Lease for Term (i.e., a lease for a term of one year or less or leases for more than a year with “saving language”)

Yes, but only if the tenant was served with a 5-day Notice To Correct Breach in the prior 12 months (Sec. 704.17(2)(b), Wis. Stats.)

• Periodic Tenancy (i.e., month-to-month)

Yes

5-DAY NOTICE TERMINATING TENANCY FOR CRIMINAL ACTIVITY

• Lease for Term (i.e., a lease for a term of one year or less or lease for a term of one year or more)

Yes (Sec. 704.17(3m)

• Periodic Tenancy (i.e. month-to-month)

Yes (Sec. 704.17(3m)

5-DAY NOTICE TERMINATING TENANCY FOR DRUG OR GANG NUISANCE

• Lease for Term (i.e., a lease for a term of one year or less or lease for a term of one year or more)

Yes (Sec. 704.17(2)(c) and 704.17(3)(b) Wis. Stats.)

• Periodic Tenancy (i.e., month-to-month)

Yes (Sec. 704.17(1p)(c), Wis. Stats.)

5-DAY NOTICE TERMINATING TENANCY OF IMMINENT THREAT OF SERIOUS PHYSICAL HARM

• Lease for Term (i.e., a lease for a term of one year or less or lease for a term of one year or more)

  Yes (Sec. 704.16(3))

• Periodic Tenancy (i.e., month-to-month)

Yes (Sec. 704.16(3))

28-DAY NOTICE

• Lease for Term (i.e., a lease for a term of one year or less or lease for a term of one year or more)

No

• Periodic Tenancy (i.e., month-to-month)

Yes (Sec. 704.19, Wis. Stats.)

30-DAY NOTICE FOR NON-PAYMENT OF RENT OR OTHER BREACH

• Lease for Term (i.e., a lease for a term of one year or less or lease for a term of one year or more)

Should only be used in leases for more than one year that do not contain “saving language”. (Sec. 704.19(3)(a))

• Periodic Tenancy (i.e., month-to-month)

No

NOTICE OF NON-RENEWAL (or Letter Non-Renewing Tenancy)

• Lease for Term (i.e., a lease for a term of one year or less or lease for a term of one year or more)

Yes, to notify the tenant that you will not be renewing their lease. Must be served just like a 5-day or 14-day notice.

• Periodic Tenancy (i.e., month-to-month)

No. For a periodic tenancy, you would issue a 28-day Notice instead of a Notice of Non-Renewal.

IMPLICATIONS OF THE CARES ACT ON NOTICE OPTIONS

As outlined in the November 21, 2024, blog post by Atty. Gary D. Koch of Pettit Law Group S.C., the 30-day Notice Requirement for “Covered Dwelling Units” is still law and will alter your ability to serve a 5-day, 14-day, or 28-day Notice to tenants in “Covered Dwellings.”

As Wisconsin law requires notices to be AT LEAST 5, 14, or 28 days, a notice is not invalid if it provides a tenant with more time. Thus, there is no penalty for complying with the provisions of the CARES Act, even if you were not required to do so. It may be beneficial to err on the side of compliance with the CARES Act when issuing notices if you are unsure if your rental property is a “Covered Dwelling.”

We have maintained that a “curable” 30-day Notice can be used in place of a 5-day Notice and that a “non-curable” 30-day Notice can be used in place of a 14-day Notice to comply with both the CARES Act and Wisconsin Statutes. Some tenant advocates have maintained that all notices under the CARES Act must be curable, but they have not provided our law firm with any support for that assertion.

Written by Atty. Jennifer Hayden of Pettit Law Group S.C.

With the COVID-19 Pandemic Over, Is the CARES Act Still In Effect?

This blog post was written by Atty. Gary D. Koch of Pettit Law Group S.C.

While some effects of the COVID-19 Pandemic may continue to linger, the Public Health Emergency officially ended in May 2023. Does that mean the CARES Act (Coronavirus Aid, Relief and Economic Security Act) is no longer relevant?

Unfortunately, the CARES Act is still relevant for landlords, specifically the 30-day notice period required for “Covered Dwelling Units.”

For a brief recap on the history and some potential issues for not complying with the Act, please see this prior blog post

As a refresher, Section 4024(c)(1) of the CARES Act requires that “[t]he lessor of a covered dwelling unit may not require the tenant to vacate the covered dwelling unit before the date that is 30 days after the date on which the lessor provides the tenant with a notice to vacate.” In short, if your property is a Covered Dwelling Unit (with some government funding or backing), then notices should give the tenant 30 days to act.

There are several reasons why the CARES Act is still in effect.

First, do you remember the eviction moratoria? There were both federal and state-level prohibitions on filing evictions. The federal moratorium was found in the CARES Act, at Section 4024(b), the paragraph immediately preceding the 30-day notice requirement. The moratorium had a delineated end date (120 days from March 27). The provision requiring 30-day notices does not have a delineated end date. Because Congress put an end date to one provision but not the paragraph right after, it is clear that they did not intend for the 30-day notice requirement to expire.

Second, several courts have upheld the 30-day notice provision both before and after the official end to the pandemic. Courts in Washington, Colorado, Ohio, and Indiana all reviewed notices that did not provide the requisite 30 days for Covered Dwelling Units and dismissed the evictions based on the notices.

Finally, both Chambers of Congress have introduced legislation to repeal the 30-day notice provision of the CARES Act. In February 2023, Representative Barry Loudermilk introduced the “Respect State Housing Laws Act” in the House of Representatives. In February 2024, Senator Marco Rubio introduced the same “Respect State Housing Laws Act” in the Senate. Neither bill has yet to pass, but the fact that Congress, the political body that passed the CARES Act, has introduced legislation to repeal portions of it, is strongly suggestive that the CARES Act is still in effect.

While no cases have been decided in Wisconsin directing that the CARES Act is still in effect, laws are generally in effect until a court overturns them. Hence, the lack of a case stating that the CARES Act is in effect is not persuasive. Moreover, as noted in our prior post, there are penalties for not following the CARES Act. There are no penalties, however, for following the CARES Act provisions if you don’t have to. Wisconsin law requires notices of at least 5, 14, or 28 days, and a 30-day notice is not invalid for providing a tenant with too much time.  It may be to your benefit to err on the side of compliance with the CARES Act when it comes to issuing notices.

Atty. Gary D. Koch of Pettit Law Group S.C.

Do you want to know everything about Residential Landlord-Tenant Law in Wisconsin? Then Attend My Landlord Boot Camp on November 16, 2024

Do you want to learn everything there is to know about residential landlord-tenant law in Wisconsin? If so, then you must attend my next Landlord Boot Camp, which will be held on Saturday, November 16th, from 8:30 am - 6 pm at the Sonesta Hotel in Wauwatosa

I will cover everything a landlord needs to know about residential landlord-tenant law in Wisconsin.  We will be covering the all-important topics like:

• Screening and Qualifying the Prospective Applicant and Fair Housing Issues

• Rental Documents

• ATCP 134: Residential Rental Practice Rules and Security Deposits

• Causes for Evictions

• Notices Terminating Tenancy

• The Judicial Eviction Process, and

• Collection of Your Money Judgement (a/k/a How Difficult It Is To Get Paid)

Post-pandemic, a lot of new issues have popped up, which we will also be covering like:

• The CARES Act and whether your rental property is a "covered property" under the Act and what you must do differently.

• The new federal and state focus is on "fees" that landlords are charging tenants and how that can cause trouble for landlords.

• The newer debt collection form that must be used if you are collecting a debt for another

• The rise in tenants appearing in court with attorneys and how this impacts the court process.

• The issue of sealing (redacting of a tenant's name) in eviction actions.

There will be a significant focus on the impact of the Koble case and what you need to do to protect yourself, and what to do if you are sued for allegedly violating one of the “10 Deadly Sins.”

There will also be time for Q+A from 5 pm - 6 pm

You will also receive a PDF of my seminar outline and exhibits totaling more than 100+ pages and which prior attendees have stated is worth the price of admission alone.

I hope you can spend the day with me on Saturday, November 16th.

Please note that Landlord Boot Camp is only offered as an in-person event.  You cannot attend virtually. 

Please visit the Rental Property Association of Wisconsin's website to learn more about pricing and register for Landlord Boot Camp. 

Can I Charge A Nonrefundable Pet Fee? Or What About Charging a Higher Pet Rent for the First Month?

I recently received a question from a client asking whether she could legally charge a nonrefundable pet fee of $150 or a more significant pet rent of $150 for the first month (with all subsequent pet rent being $50). It was an interesting question. Below is the thought process I used to analyze and provide my client with an answer.

We already know that a landlord cannot charge a nonrefundable pet deposit. My previous blog post explains why.

No one can say with 100% certainty whether my client’s proposal would be acceptable because no Wisconsin Statute or Administrative Code Provision is directly on point. Further, as far as I know, no case law in Wisconsin addresses this issue. Finally, I am not aware that a trial judge has provided a ruling on this topic. Even if a circuit court had made such a ruling, while interesting, it would not be precedent nor binding on the State or even another circuit court.

Based on my experience and prior dealings with the State (DATCP and/or the Attorney General’s office), the State would view what my client proposed as not being allowed and could result in her being investigated and possibly fined. While I often disagree with the State’s views on things, in this situation, I would have no “law” to support my argument against the State’s probable view that you cannot charge a nonrefundable pet fee or a more significant first month’s pet rent.

A decent argument could be made that a one-time pet fee is nothing more than a nonrefundable pet deposit. In an earlier blog post, I explained that a “pet deposit” meets the definition of a “security deposit,” and by definition, a security deposit cannot be nonrefundable.

So I asked my client, if the State were to investigate your practices on this issue and ask what that first month's pet charge of $150 was used for, how would you respond? She replied that she would answer that she charged the up-front pet fee or made the first month’s pet rent larger than the subsequent months because pets can quickly cause damage to a rental property. Additionally, she indicated that if a tenant were agreeable to paying this amount, it would prove that the tenant was serious about keeping a pet.

Based on my client’s first response, I explained to her that the State would more than likely respond that the purpose of charging a pet deposit is to cover potential damage to the rental property caused by the pet. And because a pet deposit must be refundable if there is no pet damage to the rental property, then it would need to be returned to the tenant, and so by her charging a nonrefundable pet fee, it was no different than charging a nonrefundable pet deposit, she just referred to it by a different name.

I explained that since what she was proposing was uncertain at best and since most landlords want to avoid being investigated by the State, it would be much safer and perfectly legal for my client to take the pet fee of $150 instead and divide it by 12 (months), and add that amount to the monthly pet rent. This would increase the monthly pet rent by $12.50, which hopefully wouldn’t be so large as to cause a potential tenant not to rent from my client.

I further explained to her that if she did not want to increase the monthly pet rent, another option that would accomplish her goals of covering any pet damage and demonstrate that the tenant was serious about wanting a pet would be to make the $150 a refundable pet deposit (or perhaps my client should even consider raising that amount since pets can cause a lot more damage than $150 in a matter of minutes). But more importantly, I explained to her that by charging a refundable pet deposit, she would know with certainty that what she was doing would not run afoul of Wisconsin law and would keep the State out of her hair.

I also advised her that since a pet deposit can only be kept if a pet damages the rental property, some clients raise the security deposit amount for tenants with pets rather than charging a pet deposit. The reason for doing this is that a security deposit can legally be retained to repair or replace any damage, waste, or neglect, regardless of whether it was caused by a pet, and can also be kept to cover rent that was not paid. Nothing is more frustrating than having to return a pet deposit to a tenant because there was no pet damage when that same tenant owes you past due rent or caused damage himself/herself to the rental property, far exceeding the tenant’s security deposit.

I encouraged my client to consider charging an additional security deposit to tenants with pets rather than a pet deposit, as doing so would allow her to retain the deposit, if legally entitled, for non-pet damage, past-due rent, and other amounts allowed to be deducted from a tenant’s security deposit.

Safe Landlording.

T

Don’t Miss the RPA’s Annual Tradeshow + Speaker Event - RPA-CON 2024 - On Friday, October 25th + Saturday, October 26th

The Rental Property Association of Wisconsin’s Annual Trade Show and Speaker Event, nicknamed RPA-CON 2024, will be held this Friday and Saturday, October 25th and 26th at The Ingleside. You will not want to miss this event. Over 60+ vendors and suppliers to the Rental Industry will be present, and a slew of speakers will present on all aspects of real estate.

I will provide a Landlord-Tenant Law update on Friday, October 25th, at 10 a.m. and Saturday, October 26th, at 9:30 a.m.

I hope to see many of you there.

T

Avoid “Fraudulent Transfers” When Conveying Rental Property to LLC’s

This is a guest blog post written by Atty. Dave Espin of Pettit Law Group S.C.

In light of the recent Koble Investments v. Marquette decision, it is now more critical than ever for landlords who hold rental properties in their personal names to consider transferring them to limited liability companies. If a tenant files a lawsuit (or a counterclaim in an eviction action) against you, landlords who hold properties in their personal names could face large money judgments against them in their individual capacities. This could result in the holders of such judgments levying against personal assets like your home, vehicles, bank accounts, wages, or business interests in order to collect on such judgments. 

If a rental property is properly transferred to an LLC (and any relevant leases are also in the LLC’s name), those suing the LLC can generally only seek to collect on a judgment using the LLC’s assets rather than the owner’s personal assets. However, one crucial factor that often goes overlooked is the timing of such a transfer to prevent it from being deemed a “fraudulent transfer” that could void the conveyance altogether.   

A transfer can be deemed a voidable “fraudulent transfer” if it is made with “actual intent to hinder, delay, or defraud any creditor of the debtor.” In Wisconsin, there are several factors, often referred to as “badges of fraud,” that a court may consider when determining whether a transfer meets this definition. Two of the most critical factors are (1) whether, before the transfer was made, the debtor had been sued or threatened with a lawsuit, or (2) whether the transfer occurred shortly before or shortly after a substantial debt was incurred by the debtor.   

So, if you have been threatened with a lawsuit, served with an actual lawsuit, or a judgment has been entered against you, it may already be too late to transfer your property to an LLC to protect your personal assets. Thus, it is vitally important that if you own rental properties in your personal name, that you speak with an attorney about setting up an LLC and transferring your rental properties to it before you are hit with a demand letter or lawsuit. Otherwise, you may be putting your personal assets at risk.

Blog post written by Atty. David Espin of Pettit Law Group S.C.

Wisconsin Supreme Court Adopts Landlords' position on Eviction Record Retention

NOTE: The below blog post which was posted on June 18, 2024, is reproduced from the Rental Property Association of Wisconsin's blog and was written by Atty. Heiner Giese, attorney for the RPA.

Since the Journal Sentinel and the other local news agencies won't report on this, I thought it was important for people to know.

T

The Wisconsin Supreme Court today [06.18.24] issued it’s long-awaited ruling (Rule Petition 22-03) on how long eviction case records should remain available to public view via online access to court records.

The Court rejected the petition of Legal Action of Wisconsin for only a one-year retention and accepted the proposal of the Rental Property Association of Wisconsin and other landlords: 2 years retention if no money judgment entered and 10 years if a writ of restitution was granted.

The dissent by Justice Hagedorn (joined by CJ Ziegler and J. Rebecca Bradley) says a change to open records should have first been vetted by the Court's own CCAP committee and there should have been more consideration as to how restricting access to eviction filings is going to affect the business practices of landlords -- who are entitled to know the prior rental history of tenant applicants and will pass on the costs of more difficult screening to other tenants (J. Hagedorn does not say it, but an example of this is landlords requiring a double security deposit because they can't be sure if an applicant had prior evictions and is thus not a good risk).

The Order's effective date is delayed for one year to July 1, 2025 but the current law found in Wisconsin statute section 758.20 -- which requires no less than a 2 year retention for evictions where no money judgment was docketed and 10 years if a writ of restitution was issued -- was acknowledged by the Supreme Court and should continue to apply. Legal Action of Wisconsin had urged the court to overrule that statute and make its own rules but the court specifically declined to do so.

By Atty Heiner Giese

ATTENTION LANDLORDS: Wisconsin Court of Appeals case of Koble v. Marquardt Is Now Law

This is a long blog post, and I apologize in advance, but I sincerely hope that you take the time to read it all the way until the end as it is very important that Wisconsin landlords know what they will be facing. This may be one of the biggest, if not the biggest, issues facing landlords in the last 30 years that I have been a practicing attorney, representing many of you.

Koble Investments v. Marquardt (“Koble”) is a District III Wisconsin Court of Appeals case from Marathon County which has now been published and therefore is now the law in the State of Wisconsin. When a Court of Appeals case is published it becomes precedent for all courts that are lower than the Court of Appeals, which means all the state circuit courts in every county in Wisconsin.

The holding in Koble is that if a landlord has a void rental agreement (i.e., the rental agreement contains one of the “10 Deadly Sins” as set forth in Wis. Stat. § 704.44  the remedy for the rental agreement being void and unenforceable is the complete disgorgement of all rent previously paid by the tenant to the landlord. Stated another way, if a landlord has a provision in its rental agreement, which includes any rental documents as they are incorporated into the rental agreement, that violate any of the “10 Deadly Sins,” the landlord must return all rent that it received from the tenant during the tenant’s entire tenancy. Essentially, because of something that may not even have been intentional by the landlord, the tenant will get to live in the landlord’s rental property for free for the tenant’s entire tenancy, even if the tenant was not damaged because of the prohibited language in the rental agreement.

While the landlord in the Koble has petitioned the Supreme Court of Wisconsin to accept and hear this case, the Wisconsin Supreme Court only accepts a limited number of cases each year and is not obligated to take the Koble case.

Additionally, the landlord in Koble failed to raise the argument that under Wisconsin law if a landlord’s lease is determined to be void, it automatically defaults to a month-to-month tenancy per Wis. Stat. § 704.01(2), and thus still requires the tenant to pay rent. How did the landlord fail to raise such an obvious argument? I do not know the answer for certain, but my assumption is that the attorney that represented the landlord was unfortunately not familiar with Wisconsin Landlord-Tenant law.

In May of 2023, in an unpublished District III Wisconsin Court of Appeals case also out of Marathon County entitled Henchey and Blakely v. Wausau Landmark Corp. (“Henchey”) the landlord also failed to raise the argument that a void lease defaults to a month-to-month tenancy and that rent still must be paid. In Henchey, the Wisconsin Court of Appeals from District III also said the sole remedy for having an illegal provision in a lease was the return all rent paid by the tenant during the entire tenancy, thus allowing the tenant to live for free. In Henchey, the tenant was not even a current tenant of the landlord at the time of the lawsuit. The tenant had moved out of the rental property two (2) years earlier before choosing to sue the landlord for the return of its rent. Again, just like in Koble, the tenant was not damaged because of the prohibited provision included in the lease. In Henchey, the Court of Appeals analogized the inclusion of prohibited language in the lease to an auto repair shop failing to obtain prior authority from the customer to make the repair and failing to provide an estimate of the cost of the repair to the customer prior to commencing work on the customer’s car.

Additionally, the landlord in Koble also allegedly failed to sufficiently develop its argument against the remedy of returning all rent received during the entire tenancy back to the tenant. The landlord also failed to advise the court that such a holding would decimate a large part of the residential rental industry in Wisconsin.

Since the above arguments were either not raised or allegedly not sufficiently developed by the landlord in Koble, those arguments are essentially waived and cannot be raised by the landlord before the Wisconsin Supreme Court.

Thus, the burden falls on the various landlord groups throughout the state, such as the Rental Property Association of Wisconsin, Inc. (“RPA”) to take action and make these arguments to the Wisconsin Supreme Court by filing an amicus (“friends of the court”) brief requesting that the Wisconsin Supreme Court accept the Koble case. This is necessary so that the Supreme Court of Wisconsin can prevent an unjust outcome because the applicable law in Wisconsin was ignored.

The publication of Koble is detrimental to all Wisconsin landlords because tenants now have an even greater reason to argue that all rental leases that they have ever entered into with a landlord or property management company are void and contrary to Wis. Stat. § 704.44. Tenants have nothing to lose in making such an argument. If they prevail, they receive a windfall and have been able to live for free. And if they lose, their case is just dismissed and there is no penalty to the tenant.

In the Koble case, the landlord failed to include the required domestic violence notice provisions as required per Wis. Stat. § 704.14. Further, the lease also contained language that allowed the landlord to terminate the tenancy of a tenant for a crime committed in relation to the rental property. The inclusion of such language coupled with the failure to include the domestic violence language is a clear violation of the 10th Deadly Sin (Wis. Stat. § 704.44(10)).

But the arguments that tenants have been making since Henchey in May of 2023, have not been as clear. In fact, some of the arguments being made stretch both the imagination and common sense. Arguments are being made that if a landlord’s lease states that a “tenant can be evicted if they engage in criminal activity on the premises” that it violates the 9th Deadly Sin (Wis. Stat. § 704.44(9)).

Wis. Stat. § 704.44(9) says that a lease will be void if it “Allows the landlord to terminate the tenancy of a tenant 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 a victim, as defined in 950.02(4), of that crime.”

Where in the following language -- “tenant can be evicted if they engage in criminal activity on the premises” -- does is say that the landlord can evict a tenant if they are a victim of a crime? Nowhere. It does not state that anywhere and thus it is not a violation of the 9th Deadly Sin. But it is being argued that the above language violates the 9th Deadly Sin unless you also include the following phrase: “unless the tenant, or someone who lawfully resides with the tenant, is a victim, as defined in Wis. Stat. § 950.02(4), of that crime.”

So, with the publication of Koble, I anticipate that landlords will see even more tenants trying to attack their leases arguing that they are void. Wisconsin landlords must ensure they are using rental documents that do not violate any of the 10 Deadly Sins. If you are using the rental documents that I draft that are sold at Wisconsin Legal Blank (“WLB”), you must use the most current version of both the Residential Rental Agreement, Rules and Regulations, Nonstandard Rental Provisions, and the other rental forms that I draft. WLB provides you with a list of the most current rental documents. This is necessary to protect yourself. It doesn’t mean that tenants won’t still try to attack them. They will. They most definitely will. They will continue to attack them as long as there is the possibility for them to obtain that windfall and live for free.

The Koble case could completely wipe out small to mid-size landlords in Wisconsin. If many tenants living in a large rental complex come together to sue a larger landlord seeking reimbursement of all rent paid or if all tenants renting from a large landlord with multiple rental properties in the state, join in a class action lawsuit against that larger landlord seeking the return of all their rent, that landlord could go out of business as well.

If landlords are forced to file bankruptcy and/or give up their rentals, who is prepared to take over their roles? Is the government ready to step in and be a landlord? We need only look so far as the Housing Authority of the City of Milwaukee (“HACM”) to see that the government is not the answer. Who then?

A final note, if you happen to be on the wrong end of one of these lawsuits and the tenant is arguing that your rental documents are void and unenforceable and that you must return all of their rent payments and let them live for free, make sure that you contact the Rental Property Association of Wisconsin, Inc. (RPA) or your local landlord association. Let them know of your situation so they can help.

Additionally, if you have been sued, make sure that you retain an attorney that understands and is knowledgeable about Wisconsin landlord-tenant law as there are legitimate and valid arguments and defenses that can and should be raised in your defense. Don’t’ end up like the landlords in Henchey and Koble.

Thanks for reading until the end.

T

It Is Very Important That Landlords Ensure That They Are Using the Most Current Version of WLB's Landlord Tenant Rental Forms.

It is very important that landlords that are using the landlord-tenant law rental documents/forms that I draft, and which are sold through Wisconsin Legal Blank (WLB), ensure that they are using the most current forms.  To aid you in determining if you are using the most current version, WLB just published the document below on their website, so that you know have one place to go to determine if your rental documents are up to date. 

Please be assured that I don't revise any of the WLB landlord-tenant forms just for the hell of it.  If I revise a rental form, it is for an important reason.  In some situations the law has changed and that necessitates the revision. Other times, a Court may make an adverse ruling against a landlord based on some language in the form, and if that landlord brings this to my attention and I can confirm the ruling, that may be the reason for a revision. Sometimes, I simply have come up with a better way to explain something in the rental document or realized that I should address a new issue or topic that will make the rental document better.  But there is always an important reason that causes me to revise any of the WLB rental documents. So, if you notice that you are not using the most current version of a rental document, take the time to purchase the updated version and begin using it as soon as possible as allowed under Wisconsin Law, so that you are protected as well as possible.

Thanks

T

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Wisconsin Supreme Court Rules on CCAP Eviction Records

Breaking News from the Rental Property Association of Wisconsin's website and Blog:

Wisconsin Supreme Court rules on CCAP eviction records

04/16/2024 11:30 AM

The Wisconsin Supreme Court rejected Legal Action’s bid to make eviction judgments disappear in one year instead of the statutory 10-year retention period.

The industry and good renters owe a large thank you to Attorney Heiner Giese, Rick Van Der Leest of the Green Bay and Appleton Associations, and Chris Mokler of the Wisconsin Apartment Association for making this happen. Rick and Heiner received mention by the Court at the hearing today.

Heiner’s comments:

Follow the statute: if no money judgment is docketed, then the case goes off CCAP after two years; if a writ was issued then the record is searchable for 10 years. Our goal has always been to encourage nonpaying tenants to move voluntarily, so landlords can dismiss a case without the trauma (for both parties) of having the sheriff do a forced moveout.

Add comment

Comments

• 04/17/2024 10:57 AM| Mike Cottrell (Administrator)

  I want to personally thank our legislative team and housing coalition group for the outstanding effort they put into being the watchdog for the industry.
  
  Tim Ballering, Heiner Giese, Joe Murray, Mark Kvetkovskiy,
  Rick Van Der Leest, Gary Goyke, & Chris Mokler.
  
  Mike Cottrell
  RPA | President
  

Spring Landlord Boot Camp Will Be Held on Saturday, April 13th

Spring 2024 Landlord Boot Camp for Rental Property Association of Wisconsin (RPA)

• When:   April 13, 2024
• 8:30 AM - 6:00 PM
• Location - SONESTA HOTEL WEST (10499 W. Innovation Drive, Wauwatosa WI 53226)

Registration

• Non-Member (Early Bird) – $399.00  (Includes 1 Year General Membership to the Rental Property Assoc. of Wisconsin)
• RPA Member (Early Bird) – $249.00
• RPA Member Refresher (Early Bird) – $199.00Available to members who attended an RPA Landlord Boot Camp within the past 2 years

TO REGISTER CLICK HERE

TO REGISTER CLICK HERE        

TO REGISTER CLICK HERE

TO REGISTER CLICK HERE

TO REGISTER CLICK HERE

TO REGISTER CLICK HERE

Rental Property Association of Wisconsin, Inc. (Formerly AASEW) P.O. Box 4125 Milwaukee, WI 53204-7905 Phone: 414-276-7378

Updated Nonstandard Rental Provisions form Now Available at Wisconsin Legal Blank

Hi Everyone - I hope that you are all well on this rainy Friday afternoon.  I just wanted to alert those of you that use the Landlord-Tenant forms that I draft for Wisconsin Legal Blank, that I recently re-wrote the Nonstandard Rental Provisions (NSRP) form for clarity and legal conformity.  I recommend that you update your NSRP form accordingly to better protect yourself and your rental property.

Thanks

T

Matt Desmond, Author of "Evicted" Has Some Detractors, Including Myself.

I apologize for getting on my soapbox here, but most of you are either landlords or spend more than 40 hours a week representing landlords or working with them. If you don't fall into one of the above categories, you probably will not want to read this blog post.

I recommend that you read this recent article about Matt Desmond, the author of Evicted and now the author of Poverty. It is called "Princeton's Matthew Desmond Gets Everything Wrong About Poverty's Root Causes" authored by Aaron Brown. It points out that Desmond's analysis of statistics is poor, his conclusions are overly simple (for this complex world), and his engaging stories don't always support his conclusions.

I wish the article had also addressed the fact that out of all the landlords that Desmond interviewed for his book, Evicted, he chose to focus on one that wouldn't talk to him and another that failed miserably as a landlord, about which Desmond decided not to mention in his book.

Inner city landlord "Sharena" was one landlord that Desmond focused on in Evicted. What was never mentioned however is that Sharena lost all her inner-city rental properties to the city for failing to pay her real estate taxes PRIOR to Evicted being published. Why omit such an important fact if it came to light prior to your book being published? Probably because the failure of one of Desmond's two main landlords and her inner-city rental empire wouldn't support one of his hypotheses (not to mention a catchy slogan) that “The Hood is Good” (i.e., profitable) for landlords. If the “Hood was so Good” for landlords, why did Sharena end up losing all her rental properties? If the Hood was so Good for landlords, wouldn't Sharena be making so much money that she could pay her real estate taxes? Aaron Brown in the above-linked article addresses this issue and points out that it is not easy owning and managing rental properties in the inner-city and very few landlords are willing to do it for a myriad of reasons, and even fewer succeed. During my 28 years of representing landlords, I have had many a client think that they would strike it rich when they purchased properties in the inner city. Most of them failed and are no longer landlords. The "Hood is Good" is a catchy slogan but it is not accurate. It is very difficult owning and managing rentals in Milwaukee's inner-city.

The second landlord that Desmond chose to focus on in his book, an owner of a mobile home park on the South side, never even spoke to Desmond. Nor did Desmond speak to any of that landlord's employees. The fact that this owner would not speak to Desmond was downplayed in the book. Not being able to talk to this owner apparently made him a perfect landlord to focus on for Desmond. If the landlord won't speak to you then you don't have to worry about the landlord telling you facts or stories that might contradict your hypothesis (or conclusion?)

What about the other 10+ landlords that Desmond interviewed and who were willing to talk to him? Many of you know Tim Ballering who owns Affordable Rentals which owns and manages more than 700 units in the 53204 zip code. Tim is very involved in the Rental Property Association of Wisconsin (RPA) and is extremely involved in the industry. Tim knows more about Wisconsin's landlord-tenant law then I do. Tim has great ideas and sees the big picture and has practical real-world ideas on how to solve the problems that we are facing in the housing industry. He would have been a perfect subject for Desmond to focus on in Evicted. And most importantly, Tim's was willing to talk with Desmond. He was even interviewed by Desmond but was relegated to a footnote. Wouldn’t it have been more prudent (ethical?) to choose to focus on a landlord who would speak with you and provide you with information. My assumption is that Tim's, as well as the other willing landlords', stories, facts, and experiences didn't support Desmond's pre-ordained conclusion that the “Hood Is Good” and that landlords are bad. It’s much easier to talk about and profile a landlord that doesn’t talk and another that likes to brag about herself and her abilities and who failed miserably (but fail to mention that last part).

Please spend the time to read the article linked above.

The Next LANDLORD BOOT CAMP Seminar Will Be Held on Saturday, April 13, 2024.

My next Landlord Boot Camp for the Rental Property Association of Wisconsin, Inc. (formerly known as the AASEW) will be held on Saturday, April 13, 2024. This Boot Camp will be an in-person event.  There will not be a virtual option.  

There have been so many changes in how evictions and other Landlord-Tenant law matters are handled post COVID that I strongly recommend that you attend this Boot Camp to get caught up on all the changes, even if you have attended Boot Camp in the past.

• Attendees will receive a searchable 100 page + PDF Boot Camp manual, making it easier to search and reference items in the future.  You will also have an option to purchase for $50 a printed manual.
• As in prior Boot Camps, the live Q & A session will be part of this event.
• If you attend the Boot Camp lunch will be provided.

Landlord Boot Camp covers everything that you need to know about the CARES Act and residential Landlord Tenant law in Wisconsin, as amended in March 2012 by Act 143, in March 2014 and again in March 2016 with the passage of Act 176, and again in April of 2018 with Act 317 including:

1. How to properly screen prospective tenants.

2. How to draft written screening criteria to assist you in the selection process.

3. How to comply with both federal and state Fair Housing laws including how to comply with “reasonable modification" and “reasonable accommodation" requests.

4. How to legally reject an applicant.

5. What rental documents you should be using.

6. How you should properly be filling out those rental documents.

7. Best practices to avoid violating ATCP 134 and being sued by your tenant for double damages and actual attorney's fees.

8. How to properly draft a security deposit itemization letter.

9. How to avoid DATCP investigations and Civil Investigative Demands (CID's).

10. How to draft a good Notice for Breach so that it will not be defeated in court.

11. Explanation of when you should use a 5-day notice, 14-day notice, 28-day notice, or if it is necessary for you to use a 30-day notice.

12. Does the CARES Act apply to your rental property and if so, what you must do differently.

13. The best way to serve a notice terminating tenancy.

14. How you should be applying your tenants' rental payments to not run afoul of the Administrative Code.

15. Learn the "Ins and Outs" of the judicial eviction process.

16. How to prepare for your eviction trial in court.

17. Whether or not it is worth it to pursue a money judgment against your tenant.

18. Learn about the two types of garnishment actions.

DATE + TIME:

The seminar will be held on Saturday, April 13t, 2024, from 8:30 am - 5 pm followed by a Q+A from 5 pm - 6 pm.

COST:

If you register before April 1st: 

• RPA Members - $249
• Non-Members - $399
• Refresher (you attended Boot Camp within the last 2 years) - $199

To register click here

Can A Landlord Charge an Application Fee To A Prospective Tenant In Wisconsin?

Earlier today a client emailed me and asked whether or not his property management company could charge a rental applicant an application fee, over and above the cost of a consumer credit report, to cover the company's time and energy reviewing and vetting the rental applicant.

Based on my review of Wisconsin law, a landlord may charge an application fee but it must be refundable.  So while a landlord can charge an application fee, its probably not the kind of application fee that the landlord envisioned, because that application fee must either be returned to the tenant or applied to the tenant's rent or security deposit.  

Let me explain.

Wisconsin law only identifies two costs that a landlord can charge a rental applicant.

1. A landlord can charge a rental applicant for the actual cost, up to a maximum of $25, for a consumer credit report in most situations. Wis. Stat. Sec. 704.085(1) and Wis. Admin Code ATCP 134.05(4).
2. A landlord can charge a rental applicant for the actual costs, up to a maximum of $25, for a background report if the applicant lives outside of Wisconsin, in most situations.  Wis. Stat. sec. 704.085(2).

Neither the Wisconsin Statutes (ch. 704) nor the Wisconsin Administrative Code (ATCP 134) specifically address application fees.  However looking at the definition of an "earnest money deposit" sheds some light.

ATCP 134.02 Definitions.

(3) “Earnest money deposit" means the total of any payments or deposits, however denominated or described, given by a prospective tenant to a landlord in return for the option of entering into a rental agreement in the future, or for having a rental agreement considered by a landlord. “Earnest money deposit" does not include a fee which a landlord charges for a credit check in compliance with s. ATCP 134.05(3). 

An application fee falls under the definition of an earnest money deposit, as an application fee is a "payment" that is "given by a prospective tenant to a landlord in return for the option of entering into a rental agreement in the future, or for having a rental agreement considered by a landlord."

So, if an application fee meets the definition of an earnest money deposit, then you must look to the Administrative Code provision that addresses earnest money. 

ATCP 134.05 Earnest money deposits and credit check fees.

(2)  Refunding or crediting an earnest money deposit.

(b) A landlord who receives an earnest money deposit from a rental applicant shall do one of the following if the landlord enters into a rental agreement with that applicant:

1. Apply the earnest money deposit as rent or as a security deposit.

2. Return the earnest money deposit to the tenant.

To summarize, an application fee meets the definition of an “earnest money deposit” and earnest money deposits must be returned to the tenant or applied to the tenant's rent or security deposit. 

So, while a landlord can charge an application fee to a prospective tenant, that fee cannot be kept by a landlord to cover the costs of his/her time and energy to review and vet the applicant's application. If a landlord is not interested in following these two options then it is best not to charge an application fee. 

Another way to look at it, is "no" a landlord cannot charge an application fee to a prospective tenant under the general understanding of what an application fee is (i.e., a fee that the landlord can keep to cover its costs to review and vet the applicant).

If you are charging an application fee and not refunding it or crediting it as set forth in ATCP 134.05(2) then you are violating that provision of the Administrative Code and the applicant could sue you seeking double their damages and their actual attorney's fees or you could be investigated by the Department of Trade & Consumer Protection (DATCP) and DATCP can issue a temporary or permanent injunction ordering you to stop your practice, order you to restore the applicant for any monetary loss suffered, or fined $25 - $5,000 per offense, or serve one year in jail, or both.   Wis. Stats sec. 100.20(6), 100.26(3) and (6).