Wisconsin Landlords Cannot Require a Tenant to Pay A Non-Refundable Pet Deposit

Wisconsin law does not allow a landlord to charge a tenant a non-refundable pet deposit.

I know of some landlords that require tenants with a pet to post both a non-refundable pet deposit (to cover the cost of cleaning the carpets to remove dander) and a refundable pet deposit (to cover any damage caused by the pet).  Unfortunately, non-refundable pet deposits are not allowed in Wisconsin because they meet the definition of a security deposit and all security deposits are refundable.

Reasoning:

ATCP 134’s definition of a “security deposit” states that a security deposit “means the total of all payments and deposits given by a tenant to the landlord as security for the performance of the tenant’s obligations, and includes all rent payments in excess of 1 month’s prepaid rent.” Wis. Admin. Code ch. ATCP 134.02(11).

What is a pet deposit if not a “deposit given by a tenant to the landlord as security for the performance of the tenant’s obligations?”  The tenant’s obligation under this scenario would be to not allow his or her pet to damage the rental unit.  So legally speaking, a pet deposit is the same as a security deposit.

A Wisconsin landlord may only keep a security deposit, or a portion of a security deposit, for the amounts reasonably necessary to pay for:

1. Tenant damage, waste or neglect of the premises;
2. Unpaid rent which the tenant is legally responsible for;
3. Payment that tenant owes under the rental agreement for utility services provided by the landlord but not included in rent;
4. Payment for the direct utility service provided by a government-owned utility;
5. Unpaid monthly municipal permit fee assessed against the tenant by a local unit of government;
6. Any other item set for in the NSRP.

Wis. Stat. § 704.28 (1) and Wis. Admin. Code ch. ATCP 134.06(3).

So, if there is no damage, waste or neglect caused by the tenant’s pet, then a Landlord may not withhold a security deposit or a portion of a security deposit.  Charging a pet deposit to cover the cost of routine carpet cleaning, absent damage to the carpet, is not allowed.  A non-refundable security deposit is not allowed in Wisconsin and therefore neither is a non-refundable pet deposit.

So if you currently require tenants to post non-refundable pet deposits, you need to be aware that under Wisconsin law, that deposit will be considered to be a security deposit and is subject to all of the security deposit requirements, including the requirement to send a written itemization of any withholdings from the deposit. 

If you do not treat your non-refundable pet deposits as a security deposit and fail to follow the security deposit withholding laws and rules, then you run the potential risk of being sued by your tenant for making an improper security deposit withholding and potentially being liable for double damages and the tenant’s attorney’s fees. Ouch.