Back to Basics – Service of the Notice Terminating Tenancy

Drafted by Attorney Gary D. Koch of Petrie + Pettit S.C.

Unfortunately, landlords sometimes find themselves in the situation where they have to terminate the tenancy of a residential tenant. There are a variety of notices that can be used to do so, and that is a topic for another day. This post is on how to serve a notice terminating tenancy.

Wisconsin Statue §704.21 delineates the methods by which a landlord can serve a notice on a tenant. Among the options are personal service, substitute service, posting and mailing after diligent attempts at personal or substitute service, sending certified or registered mail, or by any other method authorized by Wis. Stat. §801.11 for service of a summons. For most landlords, the most effective means of service of the notice is via certified or registered mail.

Wis. Stat. §704.21(1)(d) authorizes service of the notice terminating tenancy by “mailing a copy of the notice by registered or certified mail to the tenant’s last-known address.” There is no requirement that the tenant actually receive the notice, simply that the landlord mail the notice via certified or registered mail to the tenant’s last-known address. Most landlords opt to wait the extra two days (see Wis. Stat. §704.19(7)) required for the certified / registered mail service because “I never received the notice” is not a defense to service under this section. The notice need only to have been sent via certified or registered mail to the tenant’s last-known address.

Furthermore, with the 2017 amendments to the eviction statutes (via 2017 Wisconsin Act 317), the Wisconsin Legislature created Wis. Stat. § 799.40(1)(g), which provides that if a landlord serves a notice terminating tenancy via certified or registered mail, that “proof of certified mailing from the United States post office shall be sufficient to establish that proper notice has been provided for the purpose of filing a complaint or otherwise demonstrating that proper notice has been given in an eviction action, and an affidavit of service may not be requested to establish that proper notice has been provided.” It is clear that the Wisconsin Legislature supports (arguably even encourages) service of notices terminating tenancy via certified or registered mail.

With all of this said, if a tenant does not actually receive the notice, though, the action specified in the notice is unlikely to occur. For example, if a tenant owes rent but never receives the notice sent via certified mail, the tenant is less likely to pay the outstanding rent owed than if the tenant had actually received the notice. Because landlords want the tenant to get the notice and perform accordingly, many landlords also send a copy of the notice via First Class U.S. Mail, as well. THIS IS NOT A REQUIREMENT OF THE STATUTES FOR PROPER SERVICE, but rather helps foster communication between landlords and tenants. It is often much less burdensome for all if the tenant actually receives the notice and performs accordingly, rather than having to move forward with an eviction.

If you have an instance where you are required to serve notice, it is important to do it properly. Petrie + Pettit can certainly help ensure compliance. Feel free to reach out to us!