Oct 19

Select The Proper Notice (DIY Eviction Series)

All eviction actions begin with a properly served notice to vacate. In Wisconsin these are typically 5, 14 and 28-day notices. If you use a rental agreement or lease with a longer notice period the 28-day notice is replaced by a notice with the length of time contained in the lease or agreement, often 45 or 60 days. The type of notice you will use depends on the reason that you wish the tenant to vacate and the type of rental agreement that you have with the tenant.

So what notice do you use?

Eviction – Non-Payment Of Rent:

The most common eviction is for non-payment of rent or other charges. This action begins with the service of a Five-Day Notice.  (Forms are available on the Apartment Association Web Site) This notice allows a tenant to “cure” (stop the eviction) by paying all amounts due within the notice period. Fill in the form as shown in the Sample Five-Day Notice and then serve it on the tenant in one of the 3 manners listed below.

Potential Problem: If you accept partial payment, you may have waived your right to continue the eviction without service of a second notice. It may help if you are accepting a partial payment to write on the receipt that no promises were made in regards to the eviction, and if the balance is not paid by a certain date, the landlord will continue the eviction process.

Potential Problem:  If you use the older style “fill in the date” style five day and you calculated the date wrong your eviction will fail even if you wait the proper amount of time before filing the eviction.

Potential Problem: A Five-Day Notice can not be served on the first- you must wait until the second or the date the rent is due under a written agreement.

Tip: If you are tired of a tenant on a year lease that is constantly late on their rent you can serve them a Fourteen Day Notice which does not allow them to stay. This can only be done after they have received a 5-Day Notice for nonpayment in a previous month within the same lease term.

Eviction – Rental Agreement Violation Month-to-Month Agreements :

Written or oral month-to-month rental agreements. In cases where the tenant has violated the rental agreement or committed waste (damaged the property), you may use a Fourteen Day Notice. The 14 Day Notice does not permit the tenant to cure, although the owner always has the option of stopping the process.

Potential Problem: The owner has the burden of proving the lease violation. If the tenant goes to court to contest the eviction action you must be prepared to offer proof such as photos, police reports, or witnesses. Simply repeating a complaint that another tenant gave you is not “admissible” as evidence. Typically, problem tenants do not come to court to contest the eviction because they know they are trouble.

Tip: If you are basing the eviction on complaints of other residents of your building ask them to give it to you in writing. Although a letter without the personal testimony of the writer is not admissible in court, most court commissioners will consider it in making their decision. You would only have to produce your witness if they appeal the commissioners decision to a circuit court judge.

Potential Problem: You can not use a fourteen day notice to evict a tenant who is disruptive in the neighborhood but causes no problems at your property.

Potential Problem: You cannot use a 5-Day Breach Notice with a month to month tenancy, rather you must use the 14-Day Notice.  While the 14-Day notice does not permit the tenant to “cure” (resolve the problem and stay) an owner certainly can agree to vacate the notice if the tenant takes care of the problem.

Tip: You may use a Twenty-Eight Day notice in a month-to-month tenancy to evict without cause. In a case where you might consider using a Fourteen-Day Notice, but do not want to have the burden of proof problem, such as bringing witnesses to court etc., use a Twenty-Eight Day notice. With a Twenty-Eight Day notice you never have to, nor should you, explain why. Just tell them they have to be out at the end of the month and if they are not out, you will go to court to have the Sheriff move them.

Tip: Want to move them faster than 28 days? One method is to serve them a Five-Day Notice early morning on the second of the month along with a Twenty-Eight Day notice. Explain to them that even if they pay, they will be evicted. Suggest they use the money they were going to give you to find a new residence. Typically they will not pay the rent and you can evict for nonpayment

Potential Problem: You cannot use a fourteen-day notice to evict a tenant who is disruptive in the neighborhood but causes no problems at your property unless you have strong lease language to support it.

Eviction – Lease Violation -Year Leases:

If the tenant is on a year lease you must give them a Five-Day Notice for the first breach during any lease term. If they “cure” the breach, they are entitled to stay. You may use the Fourteen Day notice without right to cure for the second breach within the years lease term.

Potential Problem: The owner has the burden of proving the lease violation. If the tenant goes to court to contest the eviction action you must be prepared to offer proof such as photos, police reports, or witnesses. Simply repeating a complaint that another tenant gave you is not “admissible” as evidence. Typically, problem tenants do not come to court to contest the eviction because they know they are trouble.

Tip: If you are basing the eviction on complaints of other residents of your building ask them to give it to you in writing. Although a letter, without the personal testimony of the writer, is not admissible in court, most court commissioners will consider it in making their decision. You would only have to produce your witness if they appeal the commissioners decision to a circuit court judge.

Potential Problem: You cannot use a 5-Day or 14-day notice to evict a tenant who is disruptive in the neighborhood but causes no problems at your property unless you have strong lease language to support it.

Eviction – Drug / Gang Activity:

If you receive a “drug house letter” from the police, you may use a special 5-day notice for drug activity, which requires the tenant to vacate within Five-Days. Sample 5-Day Notice- Drug Related This does not mean they will vacate, just that they should.

Potential Problem: A standard 5-day notice does not contain the required language – use the special 5-Day Notice- Drug Related for these cases.

Potential Problem: Drug dealers are not nice people. Some even carry guns. (Would make a helluva bumper sticker)

Tip: Tell the drug dealer the police are requiring you to evict them. Let them know the problem is between them and the police, not you. Tell them if they can get the police to send you a letter stating that they are not drug dealers you will cancel the eviction. Do not let them know you feel they are the most contemptible beings on the face of this planet.

Eviction – Other Causes:

If you simply don’t want to rent to a particular tenant anymore and you use a typical month-to-month tenancy – serve them with a 28 Day notice. If your rental agreement has a longer notice period serve the tenant with a notice that is consistent with the notice period required in the agreement. For tenants on a one-year lease your only option if they are current on their rent and have not violated the lease is to not renewal the lease when it expires.

Tip: Rather than evicting you can give the tenant a significant rent increase. That may cause them to move on their own, saving you the cost and aggravation of forcing them to move.

Potential Problem: While you are certainly free to get rid of the annoying man in apartment 107, you can run into real problems if you do so within six months of him reporting you to the building inspector. This only applies to termination without cause. If the tenant owes rent or is selling drugs, by all means evict them. This same caution applies to rent increases or reduction in services.

Potential Problem: Property owners can find themselves in trouble for violating fair housing laws by evicting tenants simply because they are members of a protected class. You can read more on this in our Owners Guide to Renting, Tenant Screening, Selection and Fair Housing.

DIY Eviction Series:

Disclaimer I am “just a landlord,” NOT an attorney or accountant. If you need legal advice, tax advice or have appendicitis, Please don’t rely on something you read on the internet and do it yourself. Rather, hire a competent professional.

7 Responses to “5-Day, 14-Day or 28-Day, Which notice do I use?”

  1. John H. Fischer says:

    Just some thoughts on the 5-14-28 thing..

    The drug/gang notice, and the new domestic violence notice can both be used no matter what the length of the lease term is.

    For non-payment of rent in a month-to-month tenancy, the landlord has their choice of a 5-day or 14-day, even if it is the first time they are late

    Also, it helps to warn about the EVIL lease longer than a year (a 15 month lease so it does end in winter, or a common mistake when a tenant wants to move in a little early is to run the lease term from 10/15/09 to 10/31/10) – in those cases, the 5 and 14 day cannot be used unless you have specific language allowing you to use those notices. Without specific language, leases for longer than a year are doomed to have to use the 30-day cure or vacate for most breaches.

    John H. Fischer
    President, HelpRent, Co.
    john@helprent.com

  2. Tim Ballering says:

    Good points.

    Remember too a lease of more than a year must meet the recordability requirements of §706

  3. Lilly says:

    What form do I serve to tenants who are on a lease but are disruptive tenants and are causing the tenants downstairs to complain about their constanct upheavals.

  4. Bill says:

    Hi Lily,

    Usually there is a clause in your lease that defines behavior that is a violation of your lease agreement. I have a couple lines in my leases that outline some of that. I also have a section regarding smoking as we do not allow non-smoking

    (i) And Tenant’s family and guests shall at all times maintain order in the Premises and at all places on the Premises, and shall not make or permit any loud or improper noises, or otherwise disturb other residents;
    (j) Keep all radios, television sets, stereos, phonographs, etc., turned down to a level of sound that does not annoy or interfere with other residents;

    Hopefully this helps. If you don’t have this as a part of your lease agreements now, you might want to add it. You can also create an addendum to your lease which also can outline expectations. Good luck.

  5. Linda says:

    Hello!

    Im in the military and stationed in Puerto Rico. I came home to Milwaukee, for a few weeks, to meet my new tenant in my home and was blasted with complaints from the neighbors and other tenants in the home (3 family home) about screaming and yelling fights between her and her boyfriend (he is NOT on the lease), him parking behind the garage in the alley every night as he moved himself in (not legal) as well as not maintaining the lawn as stipulated in the rental agreement. These are all violations of the written rental agreement. My property manager and I gave her 3 verbal warnings (in person) throughout the month of June and she is on a 1 year lease with all these conditions stated in the lease (peaceful neighborhood, maintaining the yard and no visitors over 1 day without landlord approval, etc). She did not correct any of the violations and so we gave her a 30 day termination notice on June 30th. On July 1st, she decided to finally cut the grass, but she also completely destroyed my Grandmothers’ memorial flower garden by pulling out every single flower and bush I had planted a few years ago before I deployed overseas. ..I would consider this destruction of personal property. Is that a correct assumption? Now she is screaming and harassing me with text messages saying that I am in the wrong and how could I evict her illegally like this. Ive been searching the web and have come across several confusing avenues that I can or maybe should have taken. Can you please make it crystal clear for me? Am I in the wrong? Is there anythings else I can do or do I have to wait till the end of the month to file in small claims for eviction? Can I give her another notice for destruction of personal property that would override the previous 30 day notice and let me take action in court sooner?….I doubt this is possible but wanted to ask anyway.

    Thanks so much for any suggestions that you can give! Linda

  6. jon stiener says:

    how do i evict a renter from my duplex, she never came to sign the papers and first two months let the rent slide as in pay when she has it, she is a friend but obvisously been taken advantage of, so thus there is NO LEASE, NO PAPER WORK NOTHING SIGNED BY HER OR MYSELF. it was a verbal she can pay weekly for rent or monthly and she chose weekly, and she started moving her stuff in and rent is 800 a month, she was suppose to be paying 250 a week which includes security deposit too. lately she has been paying but it is not always on time. either way she still owes 1900 in back rent and its just a headache want her out….WHAT IS THE BEST WAY TO DO SO?

  7. Korean says:

    Thank you

    […]This really resolved my problem, many thanks![…]

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