Illegal Provisions May Void Lease

Many Wisconsin landlords are not aware that if they have an illegal provision in their Wisconsin rental agreement form, the entire agreement may be unenforceable.  In fact, the lease may be unenforceable even if the landlord never tries to enforce the “illegal” provision.  The issue was addressed by the Wisconsin Supreme Court in Baierl v. McTaggart.  In that case, the lease contained a provision requiring the tenant to pay the landlord’s attorney’s fees in any legal action arising under the rental agreement.  Such provisions are prohibited under Chapter ATCP 134 of the Wisconsin Administrative Code.  The tenant in that case vacated the property early, and the landlord sued for damages.  Although the landlord never sought to enforce the attorney’s fees provision, in a 2001 decision, the Wisconsin Supreme Court held that because the landlord’s lease contained the illegal provision, the entire lease was unenforceable.

In our representation of landlords, we often run across leases that contain prohibited provisions.  Usually, it is because the landlord cobbled together his own lease, used a “Wisconsin rental agreement form” found on the internet, or purchased a rental agreement form at an office supply store.  Other times, a landlord purchasing a rented property may have “inherited” a bad lease form from the former owner.  Even forms that claim to be state-specific often contain one or more of the prohibited provisions.

Prohibited Lease Provisions

Section ATCP 134.08 of the Wisconsin Administrative Code specifies 7 provisions that cannot be included in a Wisconsin residential rental agreement.

A Wisconsin rental agreement form cannot contain a provision that:

1. Authorizes the eviction of a tenant from the property other than by the judicial eviction process set forth in the Wisconsin Statutes;
2. Provides for the acceleration of rent payments if the tenant defaults or breaches the rental agreement;
3. Waives the landlord’s duty to mitigate damages;
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;
5. Relieves the landlord from liability for property damage or personal injuries caused by the landlord’s negligent acts or omissions;
6. Imposes liability on a tenant for injuries or damages which are clearly beyond the tenant’s control or any damage caused by natural disasters or by persons other then the tenant or the tenant’s guests; or
7. 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.

Wisconsin landlords should review their Wisconsin rental agreement form to make sure it does not contain any of these provisions. Including any of these provisions in a Wisconsin rental agreement form could make the lease unenforceable against the tenant.  The landlord could even risk exposure to a lawsuit for double damages and attorney’s fees by the tenant.

Chapter 704 of the Wisconsin Statutes, governing Landlord and Tenant law, was significantly modified in 2012, with the new provisions effective April 1, 2012.  Among the many changes is the codification of the principle discussed above.  Now, state statutes (rather than simply the Bairel v. McTaggart case) specifically provide that a lease is void if it contains any of the above provisions.  The law adds an “eighth deadly sin” to the list of prohibited provisions.  A lease governed by sec. 704.44 is void if it allows a landlord to terminate the tenancy of a tenant if a crime is committed in or on the rental property – when the tenant could not have reasonably prevented the crime.

Sec. 704.44, Wis. Stats. reads as follows:

704.44  Residential rental agreement that contains certain provisions is void.  Notwithstanding s. 704.02, a residential rental agreement is void and unenforceable if it does any of the following:

Where to get a Wisconsin Rental Agreement Form

Wisconsin Legal Blank sells a Residential Rental Agreement that does not contain any of the prohibited lease provisions. Landlords using such a “fill-in-the-blank” form should be sure they are using the most recent version of the document (it was last updated 3/2012).  If a landlord wants to alter the provisions in the standard form, consulting with an attorney experienced in drafting residential leases is recommended.  NEVER try to piece together your own rental agreement from various written or internet-based lease agreements.  More than likely, you will inadvertently include a prohibited provision or exclude what may end up being a key provision of the lease.

Wisconsin Rental Agreement Form Attorneys

To make sure your Wisconsin rental agreement form complies with Wisconsin law, contact the attorneys at our office for a review of your Wisconsin rental agreement form.  Call 715.843.6700 to discuss your Wisconsin rental agreement form. Email regarding your Wisconsin rental agreement form.  Do you have questions regarding your Wisconsin rental agreement form? If you are a Wisconsin landlord we can advise you as to your Wisconsin rental agreement form.  Call 715.843.600 for more information about a Wisconsin rental agreement form.

Wisconsin Rental Agreement Form Attorneys: Eaton Law, LLP