Breaking a lease in Wisconsin

A tenant who leaves early still owes rent, but the landlord must make reasonable efforts to rerent, and what the landlord recovers is reduced by the net rent those efforts could bring in. A lease clause that accelerates rent on default or waives this duty to mitigate makes the whole rental agreement void (Wis. Stat. § 704.29; Wis. Stat. § 704.44(3m)).

• You must show that you tried to rerent; the tenant must prove your efforts were unreasonable. You may also recover reasonable listing and advertising costs (Wis. Stat. § 704.29(2)(b); Wis. Stat. § 704.29(3)).
• A tenant may end the tenancy by notice with a certified copy of a qualifying injunction, no-contact order or criminal complaint when the tenant or the tenant's child faces an imminent threat of serious physical harm, or based on sexual assault. The tenant owes no rent after the end of the month following the month of the notice or move-out, whichever is later, subject to your duty to mitigate (Wis. Stat. § 704.16(1); Wis. Stat. § 704.16(1m); Wis. Stat. § 704.16(2); Wis. Stat. § 704.16(2m)).
• When a tenant dies, the tenancy ends 60 days after you learn of the death or at the end of the lease term, whichever is earlier. You may not contact the family to collect rent they do not owe (Wis. Stat. § 704.165).
• A member of the Wisconsin National Guard or state defense force ordered into state active duty for 30 days or more after signing the lease may end it by written notice delivered personally or by first class mail (Wis. Stat. § 321.62(14)).
• An agreement to end a written lease more than one year before its expiration date must be in writing and signed by both sides (Wis. Stat. § 704.03(4)).
• Keep an early move-out file with the notice, key-return date, condition photos, listing dates, showing records, advertising receipts and any replacement tenancy start date. Use a separate account of rent claimed, payments and re-rental credits so the balance can be explained. If both sides agree to a release, put its end date, remaining amounts and the people released in a signed agreement; do not assume that discussing a replacement tenant settles every obligation. These records help explain the mitigation and agreement rules above (Wisconsin DATCP: tenants’ rights and responsibilities).

If the unit becomes untenantable from fire, water or other casualty, or from a condition hazardous to health, or if the landlord's failure to repair materially affects health or safety, the tenant may move out unless the landlord promptly fixes the problem. A tenant who stays may pay reduced rent to the extent the tenant loses full use of the unit, but may not withhold rent in full (Wis. Stat. § 704.07(4)).

• A tenant who justifiably moves out owes no rent after the unit became untenantable, and you must refund rent paid in advance for that period (Wis. Stat. § 704.07(4)).
• These remedies do not apply when the tenant's negligence or misuse caused the condition (Wis. Stat. § 704.07(4)).
• Chapter 704 gives tenants no right to make repairs and deduct the cost from rent (Wis. Stat. § 704.07).
• Local ordinances may allow rent abatement only for conditions that materially affect health or safety or substantially affect use of the unit (Wis. Stat. § 704.07(5)).

A tenant at will or a tenant with a periodic tenancy shorter than year to year, such as month to month, may assign or sublease only with your agreement or consent. Any other tenant, including one with a lease, may transfer unless the lease expressly restricts transfer (Wis. Stat. § 704.09(1)).

• Unless the lease or an express release says otherwise, a transfer or your consent to it does not relieve the original tenant of the lease obligations (Wis. Stat. § 704.09(2)).
• Consenting to one transfer, or waiving a breach of a transfer restriction, is not consent to later transfers (Wis. Stat. § 704.09(5)).
• Lease terms that are not personal to the original parties can be enforced by or against a successor, but a successor owes or recovers damages only for breaches while it holds its interest, unless it took on more by contract (Wis. Stat. § 704.09(3)).
• If an assignee or subtenant holds over after the lease ends, you may hold them, or the original tenant if it took part, as a periodic tenant, or remove them and recover damages from them, or from the original tenant if you have not been accepting rent directly from the assignee or subtenant (Wis. Stat. § 704.25(5)).

Either side may end a month-to-month tenancy with at least 28 days' written notice, and the termination date must be the end of a rental period. If rent is paid more often than monthly, notice at least as long as the rent period is enough (Wis. Stat. § 704.19(2)(b); Wis. Stat. § 704.19(3)).

• The notice must be in writing and substantially tell the other side of the intent to end the tenancy and the termination date. Errors that do not mislead do not make it invalid (Wis. Stat. § 704.19(4)).
• A notice naming a date that is too early or not at the end of a rental period is still valid, but takes effect on the first date that could properly have been named (Wis. Stat. § 704.19(5)).
• The day the notice is given counts as day one. A notice sent by registered or certified mail to a Wisconsin address counts as given on the second day after mailing (Wis. Stat. § 704.19(7)).
• If a periodic tenant leaves without notice and does not pay rent, the tenancy ends on the first date it could have ended had you received proper notice on the day you learned of the move (Wis. Stat. § 704.19(6)).
• When a residential lease expires and the tenant stays, you may choose to hold the tenant month to month on the old lease terms, and accepting rent for a period after expiration counts as that choice unless you already started eviction. The lease may provide otherwise (Wis. Stat. § 704.25(2); Wis. Stat. § 704.25(3); Wis. Stat. § 704.25(4)).
• A tenant who stays without your consent after the tenancy ends owes at least twice the daily rental value for each day of holding over, unless you prove greater damages (Wis. Stat. § 704.27).

Return the deposit, less lawful deductions, within 21 days. The 21 days run from the lease's termination date if the tenant leaves on that date; from the termination date, or a new tenant's start if the unit is rerented sooner, if the tenant leaves or is evicted early; and from the date you learn the tenant has left or been removed by the sheriff if the tenant leaves after the termination date (Wis. Stat. § 704.28(4); Wis. Admin. Code § ATCP 134.06(2)).

• You may withhold only amounts reasonably necessary for tenant damage, waste or neglect; unpaid rent the tenant is legally responsible for; unpaid utility service you provided that is not included in the rent; government utility charges or municipal permit fees you become liable for; and any other reason in a separate NONSTANDARD RENTAL PROVISIONS document (Wis. Stat. § 704.28(1); Wis. Admin. Code § ATCP 134.06(3)(a)).
• Nothing may be withheld for normal wear and tear, or for damage or losses the tenant cannot reasonably be held responsible for (Wis. Stat. § 704.28(3); Wis. Admin. Code § ATCP 134.06(3)(c)).
• A nonstandard withholding reason must be in a separate written document titled NONSTANDARD RENTAL PROVISIONS that you specifically identify with the tenant before the lease is signed. A tenant's signature or initials by the provision creates a rebuttable presumption that you did (Wis. Stat. § 704.28(2); Wis. Admin. Code § ATCP 134.06(3)(b)).
• If you withhold anything, deliver or mail a written statement, within the same 21 days, describing each item of damage or other claim and the amount withheld for it (Wis. Admin. Code § ATCP 134.06(4)(a)).
• Never intentionally misrepresent or falsify a claim against a deposit, including the cost of repairs, or withhold under a falsified claim (Wis. Admin. Code § ATCP 134.06(4)(b)).
• A landlord who otherwise complied is not in violation only because the postal service could not deliver the mail (Wis. Admin. Code § ATCP 134.06(5)).
• A tenant who suffers a monetary loss because a landlord violated these rules can recover twice the loss, with costs and a reasonable attorney fee (Wis. Stat. § 100.20(5)).