Background
Merrill Park LLC, operated through the Housing Authority of the City of Milwaukee (HACM), served tenant Creelthous Burse with a 30-day notice to pay $5,728 in delinquent rent or vacate in October 2023. After Burse failed to cure, Merrill Park filed an eviction action in December 2023, and a writ of restitution was executed by the sheriff in February 2024. Merrill Park then sought to recover the balance of unpaid rent and associated costs.
Burse challenged the enforceability of the lease, arguing that an abandonment clause—which allowed management to deem the premises abandoned if a tenant was absent for two successive weeks without written notice and rent was unpaid—violated Wis. Stat. § 704.44(2m) and Wis. Admin. Code § ATCP 134.08. That statute voids any residential lease provision authorizing the eviction or exclusion of a tenant other than through the judicial eviction procedures of Wis. Stat. ch. 799. Burse also filed a counterclaim seeking return of all rent paid, double damages, and attorney’s fees.
The Milwaukee County circuit court found the abandonment clause to be a voidable provision under § 704.44(2m), declared the entire lease void and unenforceable, and denied Merrill Park’s claims for unpaid rent and fees. The court also denied Burse’s counterclaim in full. Merrill Park appealed, contesting the voiding of the lease, the circuit court’s refusal to treat the resulting tenancy as a periodic tenancy, and the court’s handling of damages and the ATCP’s applicability to a government housing provider.
The Court’s Holding
The Court of Appeals affirmed on all grounds, applying de novo review to the statutory interpretation questions. The court held that the abandonment clause on its face violated Wis. Stat. § 704.44(2m) because it permitted management to deem the premises abandoned and exclude the tenant without resort to judicial eviction procedures—for example, in the scenario where a hospitalized tenant was simply absent and unable to provide written notice. The clause contained no language distinguishing a tenant still in legal possession from one who had truly relinquished the premises, and the mere inclusion of such an illegal provision renders the entire lease void regardless of whether the landlord ever seeks to enforce it, citing Baierl v. McTaggart, 2001 WI 107. The court declined to follow the unpublished Landstar decision, finding it unpersuasive because it conducted no meaningful analysis of what constitutes actual abandonment of possession.
The court further held that a voided lease does not automatically convert into a periodic tenancy under Wis. Stat. § 704.01(2). Although Merrill Park argued that a tenant holding possession without a valid lease who pays rent on a periodic basis is by definition a periodic tenant, the court found this logic an impermissible leap unsupported by statutory text—the legislature could have specified that result but did not. Allowing such a conversion would effectively let landlords enforce an otherwise void lease through the back door and would undermine the consumer-protection purpose of § 704.44, giving landlords little incentive to omit prohibited clauses.
The remaining arguments—concerning the proper measure of damages and whether Wis. Admin. Code ch. ATCP 134 applies to a government housing authority—were dismissed as moot. Because the circuit court denied Burse’s counterclaim in full and she did not appeal that denial, no damages award existed to challenge, and no live controversy remained on those issues.
Key Takeaways
- An abandonment clause that permits a Wisconsin landlord to deem premises abandoned and exclude a tenant without judicial eviction proceedings violates Wis. Stat. § 704.44(2m), voiding the entire lease—even if the clause was never actually invoked against the tenant.
- A lease declared void under § 704.44 does not convert into a periodic tenancy; the statute contains no such remedy, and implying one would nullify the law’s deterrent purpose against landlords inserting illegal provisions.
- Public housing authorities operating under HUD guidelines are not exempt from Wisconsin’s landlord-tenant consumer protection statutes; the HUD Occupancy Handbook itself requires that abandonment rules be consistent with state and local law.
- The unpublished Landstar decision—which had been cited as persuasive authority upholding similar abandonment clauses—was rejected as unpersuasive for failing to analyze what legally constitutes abandonment of possession.
Why It Matters
This decision reinforces Wisconsin’s strict approach to lease provisions that circumvent judicial eviction procedures. By holding that the mere presence of a facially non-compliant abandonment clause voids the entire lease agreement—not just the offending clause—the court signals that landlords, including government housing authorities, bear significant risk when they include standard-form abandonment language without carefully tailoring it to comply with § 704.44(2m). Landlords who lose their entire right to collect unpaid rent as a consequence face a powerful incentive to audit and revise boilerplate lease language.
The ruling also closes off a potential workaround: landlords cannot soften the penalty of a voided lease by arguing for a fallback periodic tenancy that would preserve rent recovery rights. For tenant advocates, the decision affirms that the remedy for an illegal lease provision is complete unenforceability of the landlord’s monetary claims, not merely severance of the offending clause.