Background
Merrill Park LLC, operating through the Housing Authority of the City of Milwaukee (HACM), leased premises to Creelthous Burse. In October 2023, Merrill Park served a 30-day termination notice alleging Burse owed $5,728 in unpaid rent. When Burse failed to cure, Merrill Park filed an eviction action in December 2023, and the sheriff executed the writ of restitution in February 2024.
Burse challenged the lease validity, arguing that the abandonment clause—which allowed management to deem the premises abandoned if the tenant was absent for two weeks without notifying the landlord, and permitted the landlord to re-rent the premises and hold the tenant liable for any rent deficiency—violated Wisconsin Stat. § 704.44(2m) and Wisconsin Administrative Code § ATCP 134.08. Both statutes prohibit lease provisions that authorize eviction or exclusion of a tenant except through judicial eviction procedures under Wisconsin Stat. ch. 799.
The circuit court found the abandonment clause violated these statutes, declared the entire lease void and unenforceable, and denied Merrill Park’s claims for unpaid rent and fees. Merrill Park appealed, arguing the clause did not authorize eviction because it applied only after actual abandonment.
The Court’s Holding
The Court of Appeals affirmed in part and reversed in part. First, the court upheld the circuit court’s finding that the abandonment clause violated Wisconsin law. Although Merrill Park argued the clause only applied after a tenant had voluntarily vacated and did not authorize eviction, the court found the clause problematic because it lacked safeguards to distinguish between a tenant still in possession and one who had truly abandoned the property. Under the clause’s plain language, a landlord could deem premises abandoned and exclude a tenant without judicial process based solely on two weeks’ absence, even if the absence was involuntary (such as hospitalization). The inclusion of such an illegal provision—regardless of whether the landlord ever enforces it—renders the entire lease void and unenforceable.
Second, the court reversed the circuit court’s failure to address what happens when a lease is voided. Relying on the recent Wisconsin Supreme Court decision in Koble Investments v. Marquardt (2026 WI 19), the court held that when a lease is void and unenforceable, the tenancy converts to a periodic tenancy under Wis. Stat. § 704.01(2). A tenant occupying premises under a void lease remains obligated to pay rent on the same periodic basis as under the original lease. The court rejected the notion that a tenant could occupy premises rent-free simply because the lease contained an illegal clause. The court remanded for the circuit court to calculate the unpaid monthly rent owed under the resulting periodic tenancy.
Key Takeaways
- Abandonment clauses that allow landlords to exclude tenants without judicial eviction procedures violate Wisconsin’s tenant-protection statutes, even if the clause applies only to truly abandoned premises, because the clause lacks safeguards against unauthorized exclusion of tenants still in possession.
- Federal HUD regulations governing public housing do not preempt Wisconsin state landlord-tenant law protections; the HUD Occupancy Handbook itself requires that abandonment rules be consistent with state and local law.
- A void and unenforceable lease does not eliminate the tenant’s obligation to pay rent; instead, the tenancy automatically converts to a periodic tenancy under Wisconsin law, with the tenant remaining liable for rent on the same periodic basis.
- The mere inclusion of an illegal lease provision—even if never enforced—renders the entire lease void; enforcement is not required for the violation to exist.
Why It Matters
This decision establishes clear limits on abandonment clauses in Wisconsin residential leases. Landlords cannot use such clauses to exclude tenants without going through statutory eviction procedures, regardless of the practical scenario or good intentions. Notably, this restriction applies to public housing authorities as well as private landlords, rejecting arguments that federal housing law preempts state protections.
Equally important, the decision clarifies that while illegal lease provisions render a lease unenforceable, they do not free tenants from paying rent. By converting void leases to periodic tenancies, Wisconsin law strikes a balance: tenants escape illegal contract terms while landlords retain the right to collect rent for actual occupancy. This prevents landlords from bearing the entire cost of including prohibited clauses while also preventing tenants from obtaining free housing. The remand for calculation of periodic rent ensures Merrill Park has a path to recover compensation, but only for the period Burse actually occupied the premises under terms now governed by statute rather than the voided agreement.