Back to Basics – A Guide to Evicting a Tenant
This blog post was written by Atty. Madeline Worgull, edited by Atty. Tristan R. Pettit
When a tenant stops paying rent, a landlord cannot simply demand the keys back or change the locks. This blog post provides a step-by-step guide to the eviction process for new landlords, focusing specifically on notice requirements and removal procedures under Wis. Stat. Ch. 704 for non-payment of rent. Our team has previously published blog posts addressing individual aspects of the eviction process; this blog brings those concepts together in one place to help landlords understand the overall process from start to finish.
Step One: Choose the correct Notice and fill it out correctly
The type of tenancy determines which notice the landlord must serve. Wisconsin allows several notice periods depending on the situation, including 5-, 14-, 28-, and 30-day notices. Some of those notices are curable while others are not.
A right-to-cure notice gives the tenant a set period to cure the breach (e.g., pay past-due rent), and if the breach is cured, their tenancy continues. A notice without a right to cure terminates the tenancy at the end of the notice period.
Make sure you properly complete the notice with the tenant’s name and address, and it is best practice to itemize the past-due rent and indicate which month’s rent was not paid.
Please refer to Wis. Stat. § 704.17 for more details.
Step Two: Properly Serve the Notice
A notice is effective only if it is properly served. Under Wisconsin law, acceptable service methods include:
- Certified mail - when serving a notice on a tenant via mail, Wis. Stat. § 704.19(7)(c) deems notice to be served two days after mailing if addressed to a location within Wisconsin.
- Personal delivery to the tenant.
- By leaving a copy of the notice at the tenant's address in the presence of a competent member of the tenant's family, who is at least 14 years old, and was informed of the contents of the notice.
- By leaving a copy of the notice with a competent person apparently in charge of the premises and by mailing a copy to the tenant at their last known address.
Improper service of a notice is a common reason that landlords’ eviction cases are dismissed, even when the rent remains unpaid.
Please refer to Wis. Stat. § 704.21 for more details.
Step Three: Allow the Notice Period to Run
After service, the landlord must allow the full statutory notice period to expire (whether 5, 14, 28, or 30 days, depending on the notice served, and don’t forget the extra 2 days if serving via certified mail).
If the tenant cures within the timeframe and the notice allows a cure, a landlord cannot file for eviction against the tenant, as the tenancy has not been terminated. But if the tenant neither cures nor vacates, the landlord may move forward with a court filing.
Step Four: File an Eviction Action in Small Claims Court
Once the notice period expires without payment or vacating, the landlord may file an eviction action in small claims court in the county in which the rental property is located. To initiate the lawsuit, the landlord must file a Summons and Complaint, which provides formal notice to the tenant. The Summons is a mandatory court-produced form that you must use. You can draft your own complaint, if you wish, or use the one provided.
The first appearance is typically an initial hearing, referred to as a “return date” in some counties. At this hearing, the landlord will appear before a judge or court commissioner. Depending on county procedure, outcomes may include:
- Entry of a judgment of eviction
- Scheduling of a trial
- Refer to mediation
Eviction actions generally seek:
Restitution of the premises (the “eviction” or return of the rental property to the landlord); and
Money damages, which may include past-due rent, other amounts owed under the rental agreement, the actual cost to repair damage to the rental property, and/or statutory holdover costs.
Even if a Court has ordered the tenant out of the property, if the tenant refuses to leave, the landlord must hire the Sheriff to remove the tenant and all other occupants and return possession to the landlord. A landlord who takes actions like changing locks, removing doors, or disconnecting utilities will be in a world of hurt, as those types of actions constitute unlawful self-help evictions and may result in the landlord being sued by the tenant (and if the landlord loses, they will ordered to pay the tenant double their damages and the tenant’s attorney’s fees) and/or a complaint being filed by the tenant with the Department of Agriculture, Trade, and Consumer Protections (DATCP). DATCP has the authority to order the landlord to pay fines, return money improperly taken from the tenant, enjoin a landlord, either temporarily or permanently, and even charge the landlord with a crime.
Step Five: Obtain a Writ of Restitution
At the initial hearing, the judge or commissioner will either grant or deny a judgment of eviction. If granted, the court must immediately authorize a Writ of Restitution, a document that the landlord files with the Sheriff and that authorizes the Sheriff to physically remove the tenant from the property.
Once granted, the writ must be filed with the sheriff within 30 days of the judgment, or else it is void.
In Wisconsin, once the Writ is filed with the Sheriff and any applicable fee is paid, the Sheriff must execute the writ within 10 business days. Only the Sheriff may carry out the removal of a tenant and other occupants from the rental property; landlords may not remove the tenant themselves.
Many counties in Wisconsin have different procedures for obtaining, purchasing, and executing the Writ of Restitution. Landlords should contact the Sheriff’s Department in the county where the rental property is located to find out exactly what they are required to file, pay, and do to assist the Sheriff.
A new landlord who is going through their first eviction and their first execution of the Writ will want to ask the Sheriff about the process by which the tenant’s belongings will be removed, the cost for doing so, the storage of those belongings, what the landlord is responsible for paying, and how they will be charged.
This blog post focuses on the big-picture process of evicting a tenant in Wisconsin. There are many smaller, nuanced laws and local rules, with variations from county to county, that must be followed to lawfully take back possession of the rental property.
This blog post was written by Atty. Madeline Worgull, edited by Atty. Tristan R. Pettit.
