Many landlords work hard to follow the correct procedures in screening tenants and have the proper rental agreement and documentation set up for their tenants with clear, readily understandable provisions and rules. But even the most diligent landlords who have carefully followed proper procedures will from time to time face the need to terminate the tenancy of a misbehaving tenant. Sometimes the bad behavior is not paying the rent or loud parties, perhaps it’s an unauthorized animal or roommate, and unfortunately sometimes it’s something more serious like property damage or criminal behavior. The landlord wants to know what to do next: should notice be given to the tenant and if so, what kind of notice and according to what time line?
The answer may not be simple. It will depend upon what kind of rental agreement the tenant has, the type of behavior the landlord is unhappy with, whether the landlord wishes the tenant leave as soon as possible or instead wants to send a warning message with a second chance given if the tenant changes his or her ways.
The challenge of choosing the right notice to give is dependent upon the ins and outs laid out in Wis. Stat. §§ 704.17-704.19, which many would say is a maze of legalese. The following discussion attempts to provide basic explanations in a hopefully friendlier fashion.
The discussion refers to the WRA notice forms available in zipForm or for purchase including:
- WRA-5DRV Five Day Notice — Remedy Default or Vacate Premises
- WRA-5DVN Five Day Notice to Vacate — Nuisance or Threat of Harm
- WRA-5DCA Five Day Notice to Vacate – Criminal Activity
- WRA-14DN Fourteen Day Notice Terminating Tenancy
- WRA-28DN Twenty-eight Day Notice Terminating Tenancy (for month-to-month)
- WRA-30DN Thirty Day Notice for Leases of More Than One Year
Falling behind on rent
Certainly one of the most common problems faced by landlords is a tenant who is not paying the rent. The type of notice to give depends upon the type of tenancy. If the tenancy is month-to-month, the landlord has a choice of giving a five-day or 14-day notice. If the five-day notice to remedy the default or vacate the premises is given, the tenant has the opportunity to remain in possession of the unit if she cures the breach by paying the rent due within the five days. If she does not, the tenancy is terminated and an eviction action may be started in small claims court. Alternatively, if a 14-day notice terminating tenancy is given while the tenant is in default, the tenant does not have the opportunity to cure the breach and must vacate by the end of the 14-day period or be evicted. The other thing to remember for a month-to-month tenant is that the landlord always has the option to give a 28-day notice terminating the tenancy without having to provide any reason at all.
If the tenant not paying rent is under a lease for one year or less, the landlord’s only option the first time the rent is not paid is to give a five-day notice to pay the rent or vacate the premises. The landlord can give a 14-day notice terminating the tenancy if and only if the tenant does not pay the rent again during the following 12 months.
For leases longer than one year, a landlord gives a 30-day notice with a right to cure for failure to pay rent or, for that matter, any breach of other lease terms, such as harboring a pet in a no-pet unit. This 30-day notice essentially gives the tenant 30 days to cure the problem or the tenancy is terminated. If the tenant does not cure the breach and does not vacate, the landlord may begin the eviction process.
Sidestepping the rules
The tenant is not following the rules and the landlord has tried a friendly conversation to point out the violation and ask that the tenant stop, but alas, the friendly overture is not working. It’s time to get tougher and give a formal notice. Once again the choices the landlord has depend upon the type of tenancy, and the choices are very much the same as when the tenant does not pay rent.
For a periodic tenancy, such as a month-to-month tenancy, the landlord again has a choice. If the five-day notice to remedy the default or vacate the premises is given, the tenant has the opportunity to remain in possession of the unit if he cures the breach by taking reasonable steps to remedy the default and does so with reasonable diligence. In cases where damages are a better solution, the tenant must make a bona fide and reasonable offer to pay damages for the tenant’s breach. If the situation is not rectified by the end of the five days, the tenancy is terminated and the tenant may be evicted. If the problem was the incessant loud parties, all the tenant has to do to cure the breach is stop having the loud parties, at least for the next five days. If the problem was that a party guest was a little too rambunctious and kicked a hole in the bathroom door, a monetary settlement may be appropriate. The landlord also has the choice to just give a 14-day notice terminating the tenancy. Thus the landlord may decide whether the tenant should be given a second chance.
On the other hand, if the tenant with the excessive celebrations is under a lease for one year or less, the landlord only can give a five-day notice to remedy the default — which is to stop the parties — or vacate the premises. The landlord can give a 14-day notice terminating the tenancy if, and only if, the tenant was given a five-day notice for the same or another nonrent breach of the lease terms within the prior one year. For leases longer than one year, the 30-day notice with a right to cure is the only path the landlord may follow.
Drug house or threat of violence
Turning to some of the uglier situations that the landlord may encounter, the landlord may give a five-day notice to vacate based on a nuisance or threat of harm to a tenant or a tenant’s child. Certain documentation is a necessary prerequisite, and the notice may be given regardless of the type of the tenancy. If the landlord has received written notice from a law enforcement agency that a drug house or criminal gang nuisance exists in the property or was caused by the tenant, the five-day notice to vacate can be given. Any building used to facilitate the delivery, distribution or manufacture of a controlled substance is a drug house and considered a public nuisance. The same is true if the property is the site of criminal gang activity.
In addition, a landlord may, pursuant to Wis. Stat. § 704.16(3), terminate the tenancy of an “offending tenant” if that tenant commits one or more acts, including verbal threats, that cause another tenant, or a child of that other tenant, who occupies a dwelling unit in the same single-family rental unit as the offending tenant, to face an imminent threat of serious physical harm. The landlord may give the five-day notice to vacate only if the offending tenant is the named offender in a criminal complaint, injunction or prison release conditions with regard to the offending tenant having allegedly committed sexual assault, stalking or domestic abuse toward the other tenant or the child of the other tenant. The notice shall state the basis for its issuance and the right of the offending tenant to contest the termination in small claims court.
Criminal activity
In the case of any criminal activity that threatens the health, safety or peaceful enjoyment of other tenants, persons living in the immediate vicinity, or the landlord or the landlord’s agents or employees, or if there is drug-related criminal activity on or near the premises, the landlord may give a five-day notice to vacate. Drug-related criminal activity for these purposes does not include use or possession. It is not necessary that the person committing the criminal conduct or the drug-related criminal conduct be arrested for or convicted with regard to the conduct. Wis. Stat. § 704.17(3m) applies to conduct by a member of the tenant’s household, or the tenant’s guest or invitee. However, a victim cannot be evicted under this provision.
This notice is the same regardless of the type of tenancy and must contain specific information: a description of the criminal or drug-related criminal activity, the date on which the activity took place, and the identity or description of the individual(s) engaged in the activity. The notice must also advise the tenant that he or she may seek the assistance of legal counsel, a volunteer legal clinic or a tenant resource center; and that he or she has the right to contest the allegations in the notice before a court commissioner or judge if an eviction action is filed.
For a handy chart summarizing which notice to give, how to give the notice and any applicable time frames, be sure to review the pointers for giving notice using WRA landlord/tenant forms at www.wra.org/GivingNotice.
Resources
Debbi Conrad is Senior Attorney and Director of Legal Affairs for the WRA.