In my work representing tenants, my highest priority is eviction defense. Evictions are often, but not always, the culmination of a dispute regarding the tenant’s obligations under the rental agreement.

It is the obvious solution for landlords who believe that the agreement has been terminally breached. But what if a landlord fails to keep their side of the bargain? What are the tenants’ remedies? The answer is less obvious.

Repairs and Maintenance

The primary responsibility of a landlord is to provide safe, decent housing for their tenants. A common issue that arises between tenants and their landlords is the responsibility for and cost of making repairs. Some fixes are minor and are tenants’ responsibilities.¹ An example would be a spot of mold that can be washed away with simple bleach, or basic upkeep of the unit interior.

However, as property owners, landlords are expected to make major and structural repairs. Landlords are also required to follow local housing codes and maintain equipment provided for services such as heat, water, electricity, etc.²

Unfortunately, some landlords do not take their responsibility to maintain the property seriously. In these circumstances, low-income tenants often find themselves in a difficult bind. In Wisconsin, as in many states, there is no way for a tenant to “force” a landlord to make repairs.

While municipal building inspectors can often flag specific violations and order a remedy timeline in lieu of fines, this process is largely out of a tenant’s control in most areas of the state. Furthermore, a building inspector may simply declare a unit unfit for habitation, which forces a tenant to vacate without the guarantee of alternative housing.

Remedies for Tenants

The two primary remedies offered to tenants when landlords refuse to make necessary repairs are found in Wis. Stat. section 704.07(4). These can be referred to as “breaking the lease” and “rent abatement.”

If the use and livability of a unit is materially impaired, a tenant may vacate the unit and be relieved from the obligation to pay rent unless the landlord promptly makes necessary repairs. ³ This is considered “breaking the lease.”

In the same situation, if a tenant chooses to stay, then “rent is abated” to reflect the type and severity of the impairment until it is fixed. ⁴ The language appears to suggest that rent is abated automatically.

While that may be theoretically true, tenants are required to affirmatively assert these rights if they wish to obtain relief.

Generally, tenants have two ways to do this. They may start withholding rent in real time or sue in small claims court for the amount of rent abated. ⁵

Check Local Ordinances

An obvious question is how much rent can be abated? The statute is clear that a tenant can never withhold rent in full, but that is where the clarity ends. ⁶

Local codes in Wausau, Madison, and several other municipalities provide schedules that match type and severity of building code violations with a range of percentages that can be abated. ⁷ These schedules are only binding in their respective municipalities, but they can be useful as reference points in other jurisdictions.

In addition, some municipal codes provide processes that allow tenants to apply for rent abatement claims based on code violations which can then be enforced by the municipality.

Withholding Rent: Best Practices

If a tenant wishes to withhold rent in real time, they should understand the risks. A court or other decision maker may not agree with the tenant on an amount that is fair to withhold. In these cases, the municipal schedules provide some guidance on what amount would be reasonable given the nature of the needed repair.

The tenant should also be sure to document their attempts to get the landlord to make the repair. Ideally, the tenant will have put the landlord on notice that they plan on withholding a portion of rent if the repair is not made before the next due date. If possible, the tenant should obtain a corroborating report from the building inspector.

Under no circumstances should a tenant just unilaterally decide to withhold rent. Doing so increases their vulnerability to an eviction for nonpayment of rent.

In addition, prior to withholding rent, a tenant or advocate should evaluate factors such as the severity of the impairment, the ability to find alternative housing, and the ability to find counsel or to defend themselves in court if the landlord files for eviction.

If possible, tenants should be encouraged to speak with a lawyer prior to beginning the process of withholding rent.

Consequences of Withholding Rent

Of course, tenants who withhold any amount of rent are vulnerable to receiving a five-day notice to pay or vacate (or possibly a 14-day without a right to cure in a month-to-month tenancy). ⁸

If the landlord files for eviction, it is up to the courts to determine whether the withholding was proper.

Needless to say, the tenant has much more to lose in this situation. For tenants on month-to-month leases, which is quite common in my service area, the risk is even greater. A landlord may accept the withholding only to issue a 28-day notice to vacate (no cause required) in the following month or two. ⁹

While there are statutes that offer protection against retaliatory eviction, retaliation is notoriously difficult to prove. ¹⁰

Because 28-day notices terminating periodic tenancies do not require cause, the termination is presumed valid, therefore increasing this difficulty.

Some municipalities address this problem by enacting time-triggered presumptions of retaliation. In Eau Claire, an adverse action taken by a landlord within six months of a tenant complaining against violation of landlord-tenant law (state or local) is presumed to be retaliatory. The burden then shifts to the landlord to prove they had just cause by the preponderance of the evidence. ¹¹

Pursuing Small Claims

The much less risky method of recouping abated rent is to file suit in small claims court after the landlord-tenant relationship has ended. The tenant should still be advised to take proper steps to document the impairment and their attempts to get the landlord to address it, as this will be the primary evidence at trial.

An obvious disincentive is the cost and hassle of bringing court actions, particularly for low-income people.

Furthermore, obtaining representation in such an action is exceedingly difficult. These cases are generally not a priority for legal aid nor are they financially attractive to the private bar.

Tenants should be advised of the possibility of requesting a fee waiver from the court. They should also be made aware of the potential of double damages if they prevail on an unfair trade practices claim.

From a practical standpoint, tenants should be advised to pursue these remedies when the impairment to property is quite serious and easy for the courts to recognize as such, particularly if a tenant is withholding rent in real time. Not having working heat in January and February or having a dangerously faulty stove is a much easier sell to a judge than, say, a dispute over mold or other issues in which the severity and cause of the impairment lends itself to greater debate. Of course, the court may also take into account the flagrancy of the landlord’s actions.

Help Your Client Make an Informed Decision

Material remedies for tenants exist, but are often quite difficult to pursue. Practical considerations should always be given great weight.

If a tenant or their advocate believes that action may be appropriate, the first step is to look at Wis. Stat. section 704.07 and review local housing codes. Only after a tenant or advocate has been fully appraised of their options and have fully considered all potential implications should they act. Then, you should think about contingency plans.​

This article was originally published on the State Bar of Wisconsin’s Public Interest Law Section Blog. Visit the State Bar sections or the Public Interest Law Section web pages to learn more about the benefits of section membership.

Endnotes

¹ Wis.Stat. §§704.07(2),(3).

² Wis. Stat. § 704.07(2)(a).

³ Wis. Stat. § 704.07(4).

⁴ Id.

⁵ Ledvina v. Puksich, 2004 WI App 186 (unpublished),Boelter v. Tschantz, 323 Wis. 2d 208 (Ct. App. 2009).

⁶ Id.

⁷ Wausau, Wis., Code of Ordinances § 16.04.037; Madison, Wis., Gen. Ordinances § 32.04.

⁸ Wis.Stat. §§704.17(1p)(a),(2)(a).

⁹ Wis.Stat.§§704.19(2),(3).

¹⁰ Wis.Stat. § 704.45,ATCP § 134.09(5).

¹¹ Eau Claire, Wis., Code of Ordinances § 16.08.180.