Back To Basics - Notices Terminating Tenancy

By Atty. Gary D. Koch

A previous post discussed methods of service of notices terminating tenancy, leaving a discussion on the various notices that can be utilized for a later post. Welcome to that post!

When a landlord is in a situation where a tenancy needs to be terminated, the landlord must provide the tenant with a notice terminating the tenancy. This termination can be for a variety of reasons, or no reason at all (so long as the underlying termination is neither retaliatory nor discriminatory). The type of notice available to the landlord depends on the type of tenancy, as well as the reason for the termination. Wisconsin Statutes § 704.17 and § 704.19 provide the framework for notices.

For month-to-month tenancies, the landlord has the most options available for termination of the tenancy. The landlord can choose, upon the first breach (be it for failure to pay rent or any other non-rent breach) to issue to the tenant either a 5-Day curable notice terminating the tenancy, which gives the tenant the option to cure the breach or vacate, or a 14-Day non-curable notice terminating the tenancy, which only gives the tenant the option to vacate the unit. (Wis. Stat. § 704.17(1p)). The landlord can also issue a 28-Day notice terminating the tenancy for any reason, or no reason, so long as the termination is not for retaliatory or discriminatory reasons. (Wis. Stat. § 704.19(2) and (3)). With a 28-Day Notice, the tenancy must terminate at the end of a rental period, which is typically the end of a month.

For tenancies for a term of a year or less, or year-to-year tenancies, the landlord has the same available notices, but restrictions on when some can be given. In the instance of either a rent or non-rent breach, the landlord must first issue a 5-Day curable notice terminating the tenancy, giving the tenant the right to cure the breach. If the tenant does not cure or vacate, the landlord can start an eviction action. If the tenant cures or is otherwise allowed to remain in the premises after receiving a 5-Day curable notice, and if the tenant commits the same type of breach (either the failure to pay rent or some non-rent breach) within one year of the first breach, then the landlord can issue a 14-Day notice terminating the tenancy which does not provide the tenant the right to cure. (Wis. Stat. § 704.17(2)). The landlord can also issue a 28-Day notice terminating the tenancy, but that MUST terminate the tenancy at the end of the lease term.

For tenancies longer than a year, absent a contrary provision in the lease, the landlord must issue the tenant a 30-Day notice for any breaches (rent or non-rent). (Wis. Stat. § 704.17(3)). For these tenancies, the lease can provide for an alternative method of termination, so most leases for tenancies longer than one year make reference to the 5- and 14-Day methodology and statutes outlined above, so as to make such notices more akin to a notice to terminate a tenancy for a term of a year or less.

For ALL types of tenancies, the landlord can issue a 5-Day non-curable notice if the property is deemed a nuisance due to drugs or criminal gangs. (Wis. Stat. § 704.17(1p)(c), (2)(c) and (3)(b)). For ALL types of tenancies, the landlord can also issue a 5-Day non-curable notice in situations of criminal activity. (Wis. Stat. § 704.17(3m)(b)). Finally, for ALL types of tenancies, the landlord can issue a 5-Day non-curable notice where a tenant (or child of a tenant) faces an imminent threat of serious physical harm from another tenant if that tenant were to remain on the premises, and the threatened tenant provides necessary documentation substantiating that threat. (Wis. Stat. § 704.16(3)(b).

Because of the CARES Act, if the property is a “covered entity”, certain notices must provide the tenant with 30 days to act. It can make the terminology a bit more confusing, but the type of notice which can be given (curable, non-curable, termination) has not been changed because of the CARES Act.

For subsidized tenancies, there are different regulations which must be followed, so this blog post is targeted towards market rate rental units only.

As always, feel free to reach out to Petrie + Pettit for any assistance in determining which notice is the proper notice to issue, or for any other landlord/tenant matters.