5-DAY NOTICES AND LATE FEES IN MILWAUKEE COUNTY
Around March 1, 2009, Milwaukee County court commissioners began dismissing eviction lawsuits based on 5-day notices that included amounts other than "rent."
The statute regarding 5-day notices, §704.17, Wis. Stats., states that if a tenant "fails to pay any installment of rent when due," the landlord may issue them a 5-day notice to pay rent or vacate the unit.
In the past, landlords often listed other amounts the tenant owed in their 5-day notices, such as late fees, remaining security deposit amounts, unpaid utility fees, or amounts owed for damage to the unit. Those days appear to be gone.
Milwaukee County is now taking a very narrow view of the definition of "rent." As such, if a landlord includes any amounts other than pure rent in his/her 5-day notice, they risk having their eviction lawsuit dismissed.
As such, landlords will need to pursue these other amounts that the tenant owes during the 2nd and 3rd causes of action for money damages. If the tenant should cure the 5-day notice by paying the rent amounts within the 5-day notice, then the landlord will need to keep track of these other amounts owed and deduct them from the tenant's security deposit at the end of the tenancy or rental term (assuming that those amounts are included in the Nonstandard Rental Provisions and thus can properly be deducted from the tenant's security deposit).
To date, I am not aware of any landlord appealing a court commissioner's decision on this issue to the small claims judge. While the judge could rule differently, I believe the safest approach is for the landlord to exclude any amounts owed by the tenant other than straight rent from his/her 5-day notice.
It does not appear that Milwaukee County is applying the same reasoning to 14-day notices at this time. That most likely is because the statute pertaining to 14-day notices does not limit itself to just "rent."
This is just another example of the many technical pitfalls that can cause a landlord's eviction action to fail. Staying on top of the various L-T laws and their many permutations as applied in Milwaukee County is obvious.
