5 DAY NOTICES AND LATE FEES IN MILWAUKEE COUNTY

Around March 1, 2009 or so, Milwaukee County court commissioners began dismissing eviction lawsuits that were based on 5 day notices that included any amounts other than "rent."

The statute regarding 5 day notices, §704.17, Wis. Stats., states that if a tenant "fails to pay any installment of rent when due" the landlord may issue them a 5 day notice to pay rent or vacate the unit.

In the past landlords often listed other amounts that the tenant owed in their 5 day notices such as: late fees, remaining portions of security deposits, unpaid utility fees, or amounts owed for damage to the unit. Those days appear to be gone.

Milwaukee County is now taking a very narrow view of the definition of "rent." As such, if a landlord includes any amounts other than pure rent in his/her 5 day notice they risk having their eviction lawsuit dismissed.

As such, landlords will need to pursue these other amounts that the tenant owes during the 2^nd and 3^rd causes of action for money damages. If the tenant should cure the 5 day notice by paying the rent amounts within the 5 day notice then the landlord will need to keep track of these other amounts owed and deduct them from the tenant's security deposit at the end of the tenancy or rental term (assuming that those amounts are included in the Nonstandard Rental Provisions and thus can properly be deducted from the tenant's security deposit).

To date I am not aware of any landlord appealing a court commissioner's decision to the small claims judge on this issue. While there is a chance that the judge could rule differently I believe that the safest thing to do is for the landlord to eliminate the inclusion of any amounts owed by the tenant other than straight rent from his/her 5 day notice.

It does not appear that Milwaukee County is applying the same reasoning to 14 day notices at this time. That most likely is because the statute pertaining to 14 day notices does not limit itself to just "rent."

This is just another example of the many technical pitfalls that can cause a landlord's eviction action to fail. The need to stay on top of the various L-T laws and the many permutations of that law as determined in Milwaukee County is obvious.