The 10 Deadly Sins: 10 Provisions That Landlords Cannot Include in Their Wisconsin Residential Rental Agreements

With the passage of Act 143 (2012) and Act 76 (2014) the legislature has created several new provisions that a Residential Landlord cannot include in his Rental Agreement. There are currently 10 items, which I affectionately refer to as the "10 Deadly Sins" that if they are included in your Wisconsin residential rental agreement will render the agreement void and unenforceable.

In my representation of landlords over the past 20 years, the two most frequent situations in which I have found an illegal provision in a rental agreement were because: (1) the landlord decided to draft his/her own rental agreement and didn't know that Wisconsin law prohibited him/her from including certain language, and (2) the landlord used a rental agreement that s/he found on the internet that was not drafted by a person knowledgeable about Wisconsin landlord-tenant law.

Section 704.44 of the Wisconsin Statutes sets forth the prohibited provisions.

You cannot include a provision in your Wisconsin residential rental agreement that:

1. Allows a landlord to do any of the following because the tenant has contacted an entity for law enforcement services, health services, or safety services:

a. Increase rent

b. Decrease services

c. Bring an action for possession of the premises (i.e. eviction lawsuit)

d. Refuse to renew a rental agreement

e. Threaten to take any action in (a) - (d)

This prohibition is pretty self-explanatory. You cannot have a rental agreement provision that allows a landlord to retaliate against a tenant in any way just because the tenant has called the police, the municipal building inspection department, or other agency to complain about something that the landlord did (when they shouldn't have) or something the landlord didn't do (when they should have).

2. Authorizes the eviction of a tenant from the property other than by the judicial eviction process set forth in the Wisconsin Statutes.

Essentially this means that you cannot put any language in your rental agreement that states that if the tenant refuses to vacate at the end of a lease or after committing a breach, that the landlord is able to engage in self-help eviction. Your rental agreement cannot state that the landlord can change the locks so that the tenant is locked out. Your rental agreement cannot state that the landlord can remove the door to the apartment. The rental agreement cannot state that the landlord can turn off the heat or electricity to the unit. Nor can your rental agreement state that the landlord can remove the tenant's belongings and put them on the curb or in a storage facility.

If a tenant refuses to leave your property, the only legal way to have them removed is to file an eviction action against them, obtain a judgment of eviction, and if necessary involve the Sheriff's Department to physically remove the tenant. Because this is the only legal way to remove a tenant, it is illegal to include some other procedure to remove a tenant in your Wisconsin residential rental agreement.

3. Provides for the acceleration of rent payments if the tenant defaults or breaches the rental agreement or otherwise waives the landlord's obligation to mitigate damages as required in section 704.29, Wis. Stats.

Some commercial leases include an "acceleration of rents" clause but such clauses are prohibited in Wisconsin residential leases. So if a tenant breaches their rental agreement the landlord cannot require that the tenant immediately pay all future rent through the end of the term. According to sec. 704.29 of the Wisconsin Statutes, the landlord must attempt to mitigate the tenant's damages by trying to re-rent the unit. If the landlord is able to re-rent the unit then the breaching tenant will no longer be responsible for the rent once the new tenant moves in and begins paying rent. If the landlord is unable to re-rent the unit then the breaching tenant will be responsible for all of the rent through the end of the term, however since the landlord is unable to determine if that will be the case at the time of the breach, the landlord cannot include language in the rental agreement that the tenant must pay all future rent immediately upon a breach. It is illegal for a landlord to avoid his duty to mitigate the breaching tenant's damages (i.e. make effort to re-rent the unit) by putting such language in the rental agreement.

4. Requires the tenant to pay the landlord's attorney's fees or costs that are incurred in any legal action or dispute arising under the rental agreement.

This is the illegal provision that I see the most often when reviewing rental agreements. The lease agreements that are sold at OfficeMax and Office Depot contain this prohibited language. This is also the illegal language that was included in the rental agreement at issue in the seminal prohibited rental provision case of Baierl v. McTaggart.

In a commercial lease it is acceptable to include language that requires a tenant to pay for the landlord's attorney's fees and costs however it is not allowed in the residential context. A landlord who prevails in court and has a tenant properly evicted will still be responsible for paying his/her own attorney's fees. If you are interested in learning more about the Wisconsin Supreme Court's reasoning you should read the Baierlcase.

5. Authorizes the landlord or an agent of the landlord to confess judgment against the tenant in any action arising under the rental agreement.

A Wisconsin residential rental agreement is prohibited from including a clause that says that the tenant authorizes the landlord to automatically take a judgment against the tenant and that the tenant has no right to defend against it.

6. Relieves the landlord from liability for property damage or personal injuries caused by the landlord's negligent acts or omissions.

To put it simply, if the landlord causes damage or injury to a tenant then the landlord will be responsible for it. A landlord cannot remove his/her liability by having a tenant sign a rental agreement waiving that responsibility. For example, if a landlord is aware that the railing on his rental property's second floor porch is loose and the landlord has not gotten around to repairing it for several weeks, the landlord could be responsible for the tenant's injuries should he fall off the porch, regardless of what the rental agreement says.

7. Imposes liability on a tenant for any of the following:

(a) Personal injury arising from causes clearly beyond the tenant's control.

(b) Property damage caused by natural disasters or by persons other than the tenant's the tenant's guests or invitees.

This Deadly Sin is even broader in scope than the 6th Deadly Sin. Essentially, the rental agreement cannot state that a landlord can hold a tenant responsible for personal injuries that were caused by something beyond a tenant's control. So if a massive snowstorm injures someone or if an electrician hired by the landlord improperly wires the rental unit and their negligence causes injury to someone, a landlord cannot state that the tenant is liable for those injuries as they were out of the tenant's control.

Similarly, if that massive snowstorm or the faulty wiring by the electrician hired by the landlord results in property damage, a rental agreement cannot state that the tenant in liable for that damage as the damage was caused by a natural disaster and/or a person other than the tenant or the tenant's guests or invitees.

However, it is legal and enforceable for a rental agreement to state that a tenant will be responsible for personal injuries and/or property damage if the injuries or damage were caused by the tenant, the tenant's guests, or the tenant's invitees.

8. Waives any other statutory or legal obligation of the landlord to deliver the unit in a fit or habitable condition or maintain the unit during the tenancy.

A landlord has a responsibility to provide the tenant with an rental unit that is liveable and safe. A landlord also has the responsibility to repair and maintain the property to insure that it remains safe and livable. A landlord cannot avoid this responsibility even if the tenant agrees to allow him/her to do so in the rental agreement.

9. 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 of that crime.

Simply stated, your rental agreement cannot state that the tenant or a legal occupant is the victim of a crime.

10. Allows the landlord to terminate a tenant's tenancy for a crime committed in relation to the rental property and the rental agreement does not include the notice of domestic violence protections required under sec. 704.14, Wis. Stats.

Most good rental agreements contain some language along the lines of "Tenant shall not engage in or allow others to engage in any criminal activity on the property." You definitely want to have such language in your rental agreement. Sec. 704.14 requires that all residential rental agreements in Wisconsin must contain the language set forth in the statute verbatim (i.e. word for word - no summaries allowed). If you have failed to include the domestic abuse protections language then your rental agreement will be void if the agreement also includes language allowing you to terminate a tenant's tenancy if the tenant or their guest have engaged in criminal activity. So the key here is to make sure that your rental agreement contains the mandatory notice of domestic abuse protections set forth in sec. 704.14.

Wisconsin residential landlords need to make sure that their rental agreements do not contain any of the aforementioned "10 Deadly Sins." Failure to remove such illegal provisions will result in your rental agreement being declared void and unenforceable and may even expose you to a lawsuit for double damages and attorney's fees by the tenant.