Oct 28

So you’re telling me if there is one thing in a Wisconsin lease/rental agreement that violates the rules in ATCP 134.08 that I cannot enforce any of the agreement?

Yes, under Baierl v McTaggart the entire lease is invalid as far as the landlord’s enforcement. But it is worse than that. The Court ruled subsequent to Baierl in Dawson v. Goldammer that the tenant can enforce the parts they like.

Baierl d/b/a Supreme Builders v. McTaggart, Wis. Supreme Court, Case #98-3329 (2001). Because a lease contained a provision specifically prohibited by ATCP 134, the landlord could not enforce the lease against the tenant. The court declined to sever the illegal provision and enforce the rest of the lease, because that would undermine the policy behind ATCP 134.

In Dawson v. Goldammer, 2003 WI App 3 (Dawson I), the court of appeals held that a tenant may seek enforcement of a rental agreement that includes an attorney fee provision that violates Wisconsin Administrative Code section ATCP 134.08(3). In the case at bar, the court held that when a tenant seeks enforcement of such a lease, the tenant can sever the attorney fee provision and enforce the remainder of the lease. The court therefore reversed the part of the circuit court’s judgment that awarded attorney fees to the landlords, but it affirmed the circuit court’s rulings on all other disputed grounds (see ¶ 1).

So what are prohibited rental terms under ATCP 134?

We call them “The Seven Deadly Sins”

ATCP 134.08 Prohibited rental agreement provisions. No rental agreement may:

(1) Authorize the eviction or exclusion of a tenant from the premises, other than by judicial eviction procedures as provided under ch. 799, Stats.

(2) Provide for an acceleration of rent payments in the event of tenant default or breach of obligations under the rental agreement, or otherwise purport to waive the landlord’s obligation to mitigate damages as provided under s. 704.29, Stats.

(3) Require payment, by the tenant, of attorney’s fees or costs incurred by the landlord in any legal action or dispute arising under the rental agreement. This does not prevent the recovery of costs or attorney’s fees by a landlord or tenant pursuant to a court order under ch. 799 or 814, Stats.

(4) Authorize the landlord or any agent of the landlord to confess judgment against the tenant in any action arising under the rental agreement.

(5) Relieve, or purport to relieve the landlord from liability for property damage or personal injury caused by negligent acts or omissions of the landlord. This does not affect ordinary maintenance obligations assumed by a tenant under a rental agreement, in accordance with sub. (7) and s. 704.07, Stats.

(6) Impose, or purport to impose liability on a tenant for:

(a) Personal injury arising from causes clearly beyond the tenant’s control.

(b) Property damage caused by natural disasters, or by persons other than the tenant or the tenant’s guests or invitees. This does not affect ordinary maintenance obligations assumed by a tenant under the rental agreement, in accordance with sub. (7) and s. 704.07, Stats.

(7) Waive any statutory or other legal obligation on the part of the landlord to deliver the premises in a fit or habitable condition, or maintain the premises during tenancy.

Maybe I shouldn’t have used the “super lease” I found on the internet

3 Responses to “My rental agreement is void & I owe THEIR attorney’s fees?”

  1. Tim Ballering says:

    There are those who are knowledgeable in landlord tenant law who believe the Supreme Court decision only addresses the inclusion of an attorney fee provision.

    I suggest however that a prudent owner would make sure that their agreements do not violate any of the seven elements of ATCP 134.08 and that it avoids requiring the tenant to pay for routine carpet cleaning and painting, which is prohibited under ATCP 134.06(3) (c)

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    […]My rental agreement is void & I owe THEIR attorney’s fees? |Tim Ballering – Just A Landlord[…]…

  3. Fred Wiske says:

    Hi, I am a tenant and my landlord brought me one of these, along with increased rent after we contacted our landlord after our duplex neighbor vandalized our property in our garage and outdoors and brought an assault rifle out into a backyard full of neighbors barbequing and nodded threateningly in our direction.

    Can we break this lease or how do we go about saying we wish to move out? Our old lease was month to month and this one requires 60 days notice, so which one applies and how do we do this?

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