Nov 04

Wisconsin Code  ATCP 134 requires an owner to return a security deposit within 21 days of surrender of the premises.  This seams easy if the tenant gives proper notice and moves out when they should.  But what if they don’t?

For example the tenancy technically expires on the 30th. But the renter moves out on the 23rd and hands over the keys and a note saying they are out.  Which day do I start counting?  The 23rd or the 1st?

ATCP 134.06(2)(b) says ‘If they gave you written notice they were out on the 23rd, then the 23rd. Otherwise the 30th.” Well it doesn’t  say that exactly, but it means that. See the actual code below.

Now let’s say the tenant “holds over” until the 5th.   The 21 days begin on the 5th, plus the tenant owes you the greater of  double rent  or actual losses incurred because they failed to vacate on time.  See Wisconsin statutes §704.27  below So they would owe 10 days rent at a minimum, but it could be more.  Let’s say you had the unit rented for the 1st and you had to refund the new tenant’s money because of the holdover. Then they could owe you a month’s rent (Now, read and reread the disclaimer at the bottom)

If you had to evict them then the 21 day clock starts on the day the Sheriff removes them or the day you found it vacant.

Hey, they never gave me the key so the 21 day period never starts!

Sorry, it doesn’t work that way.  The 21 days begin at the end of the rental period.  If they moved without notice that date is the date that the tenancy would have terminated if the tenant had given you proper notice on the day you found the unit vacant.  See §704.19 (6) below.

ATCP 134.06(2)
(a) Within 21 days after a tenant surrenders the rental premises, the  landlord shall deliver or mail to the tenant the full amount of any  security deposit held by the landlord, less any amounts properly  withheld by the landlord under sub. (3).

(b) A tenant surrenders the premises under par. (a) on the last day of  tenancy provided under the rental agreement, except that:

1. If the tenant vacates before the last day of tenancy provided under  the rental agreement, and gives the landlord written notice that the  tenant has vacated, surrender occurs when the landlord receives the  written notice that the tenant has vacated. If the tenant mails the  notice to the landlord, the landlord is deemed to receive the notice  on the second day after mailing.

2. If the tenant vacates the premises after the last day of tenancy  provided under the rental agreement, surrender occurs when the  landlord learns that the tenant has vacated.

3. If the tenant is evicted, surrender occurs when a writ of  restitution is executed, or the landlord learns that the tenant has  vacated, whichever occurs first.

Damages for failure of tenant to vacate at end of lease or after notice. If a tenant remains in possession without consent of the tenant’s landlord after expiration of a lease or termination of a tenancy by notice given by either the landlord or the tenant, or after termination by valid agreement of the parties, the landlord may recover from the tenant damages suffered by the landlord because of the failure of the tenant to vacate within the time required. In absence of proof of greater damages, the landlord may recover as minimum damages twice the rental value apportioned on a daily basis for the time the tenant remains in possession. As used in this section, rental value means the amount for which the premises might reasonably have been rented, but not less than the amount actually paid or payable by the tenant for the prior rental period, and includes the money equivalent of any obligations undertaken by the tenant as part of the rental agreement, such as payment of taxes, insurance and repairs.

This section requires a minimum award of double rent when greater damages have not been proved. Vincenti v. Stewart, 107 Wis. 2d 651, 321 N.W.2d 340 (Ct. App. 1982).

704.19(6) Tenant moving out without notice. If any periodic tenant vacates the premises without notice to the landlord and fails to pay rent when due for any period, such tenancy is terminated as of the first date on which it would have terminated had the landlord been given proper notice on the day the landlord learns of the removal.

One Response to “Counting to 21: Security Deposit Refunds”

  1. Lemuel says:

    Hey very nісe blog!

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