Background
The Housing Authority of the City of Milwaukee (HACM) served former tenant Sharee Dunn with a 30-day notice to pay $9,708 in delinquent rent or vacate in September 2023. When Dunn failed to cure, HACM initiated an eviction action in January 2024. By the time of the contested hearing, Dunn had already voluntarily vacated. HACM sought to recover a total account balance of $16,466.59, which included unpaid rent, debris fees, and appliance/late-fee charges, reduced by her security deposit. HACM’s records showed Dunn had not made a single rent payment herself since 2020, with $20,117 in payments having come from community organizations.
Dunn challenged the validity of the lease, arguing that an abandonment clause in HACM’s lease agreement violated WIS. STAT. § 704.44(2m) and WIS. ADMIN. CODE § ATCP 134.08 — statutes that prohibit lease provisions authorizing eviction or exclusion of a tenant outside of judicial eviction procedures. Because the clause was facially prohibited, Dunn argued, the entire lease was void and unenforceable, relieving her of any obligation to pay the amounts HACM claimed. She also filed a counterclaim seeking return of funds paid and double damages. The Milwaukee County circuit court agreed the lease was void, denied HACM’s claims in full, and denied Dunn’s counterclaim. HACM appealed.
The abandonment clause at issue permitted HACM, if a tenant vacated or left the unit vacant for fourteen days without notice, to deem the tenancy terminated, enter the premises “with or without process of law,” remove personal property, and re-take possession — all without any requirement that rent be unpaid or that the tenant actually intend to permanently abandon the premises.
The Court’s Holding
The Court of Appeals affirmed in full. On the core question, the court held that HACM’s abandonment clause violated WIS. STAT. § 704.44(2m) because it could authorize the exclusion of a tenant who had not abandoned the property in any legally cognizable sense — including, for example, a tenant hospitalized for more than fourteen days who had paid all rent. Unlike the superficially similar clause upheld in the unpublished decision Young v. Landstar Investments LLC, HACM’s clause was not conditioned on non-payment of rent, and it explicitly permitted re-entry “with or without process of law.” Under Baierl v. McTaggart, 2001 WI 107, the inclusion of such a prohibited provision — regardless of whether the landlord ever enforces it — renders the entire lease void and unenforceable.
The court also rejected HACM’s fallback argument that a voided lease automatically converts into a periodic tenancy under WIS. STAT. § 704.01(2), which would have allowed HACM to recover rent on an ongoing-occupancy theory. The court found no statutory text directing that outcome, and concluded that permitting such a conversion would effectively allow landlords to enforce the economic benefits of an illegal lease while suffering no real consequence for including prohibited clauses — directly undermining the deterrence purpose of § 704.44.
Finally, the court dismissed as moot HACM’s arguments that the circuit court improperly awarded damages without requiring Dunn to prove pecuniary loss and that WIS. ADMIN. CODE ch. ATCP 134 does not apply to governmental housing providers. Because the circuit court denied Dunn’s counterclaim in full and she did not cross-appeal, there were no damages at issue on appeal and no live controversy over ATCP’s applicability.
Key Takeaways
- Under WIS. STAT. § 704.44(2m), including a lease provision that could authorize non-judicial eviction or exclusion voids the entire lease — even if the landlord never attempts to enforce the clause and even if the tenant never actually suffered harm from it.
- An abandonment clause that permits landlord re-entry “with or without process of law” and is not conditioned on non-payment of rent is facially invalid; it differs materially from clauses that presuppose the tenant is already out of possession and behind on rent.
- A voided residential lease does not automatically convert into a periodic tenancy under Wisconsin law; the legislature did not provide for that result, and courts will not supply the gap in a way that insulates landlords from the consequences of using prohibited lease language.
- Governmental housing authorities are not exempt from the substantive lease-prohibition rules of § 704.44, even if questions remain about whether WIS. ADMIN. CODE ch. ATCP 134’s remedial provisions apply to them.
Why It Matters
This decision is a significant warning to Wisconsin landlords — including public housing authorities — that abandonment clauses must be drafted with precision. Any language permitting non-judicial re-entry that could conceivably apply to a tenant still in possession, or that is untethered from non-payment of rent, risks voiding the entire lease agreement and extinguishing the landlord’s ability to collect unpaid rent and fees. The ruling closes a potential loophole that landlords might have used by arguing that a void lease automatically resurrects as a periodic tenancy, thereby preserving rent recovery rights.
For tenants and their advocates, the decision reinforces that § 704.44 operates as a prophylactic rule: the harm is in the drafting, not the enforcement. Tenants facing collection actions can challenge the facial validity of lease language without needing to show that the prohibited clause was ever invoked against them. Given that HACM had more than $15,000 in unpaid rent wiped out by the ruling, the financial stakes of lease-drafting compliance are substantial.