Are Your Rental Leases Legal?

The case that changes everything

In the recent case Colby Investments v. Alicia Marquart, a landlord sought to evict a tenant, only for the tenant’s lawyer to argue that the lease was void because it contained an illegal provision. Under Wisconsin Statute § 704.44, a residential lease becomes void and unenforceable if it includes any of 10 prohibited provisions.

One such prohibited provision is requiring the tenant to pay the landlord’s attorney fees in a legal dispute. The court ruled that because the lease was void, the landlord had to repay all rent paid by the tenant under the lease—a shocking and costly outcome.

Why this matters to you

This ruling underscores the importance of ensuring that your lease agreements comply with Wisconsin law. Many landlords use generic leases from the internet or out-of-state sources, which may contain illegal provisions without their knowledge. If a tenant successfully challenges your lease in court, you could face severe financial consequences.

What landlords should do now

If you’re a landlord in Wisconsin, here’s what you need to do to protect yourself:

1. Review all active leases

   Take inventory of every lease you currently have in place.
   
   

2. Check for illegal provisions

   Compare your leases against §704.44 of the Wisconsin Statutes to identify any prohibited terms. Examples of illegal provisions include:

   • Requiring tenants to pay the landlord’s attorney fees.
   • Provisions waiving specific tenant rights guaranteed by law.

   This is a complex process, and consulting an experienced real estate attorney is highly recommended.
   
   

3. Address problematic leases

   If you discover that an active lease contains an illegal provision:

   • Consult a lawyer to determine the best course of action.
   • Generally, you’ll want to draft a new lease that complies with Wisconsin law and have your tenant sign it.
   • Proceed carefully to avoid alerting tenants to potential claims against you.
     
     

4. Update your leasing practices

   Ensure that any new leases are reviewed by a Wisconsin real estate attorney to avoid future issues.
   
   

Why this needs immediate attention

There’s no grace period for addressing these issues. If your current leases are void due to illegal provisions, you’re already exposed to potential liability. This risk is even higher if you need to evict a tenant, as tenants facing eviction are more likely to scrutinize the lease for legal challenges.

Further, tenants are allowed to claim twice the amount of their pecuniary (i.e., monetary) loss, plus recovery of their actual attorneys’ fees.

Protect your investments

At Zimmer & Rens LLC, we specialize in helping landlords navigate Wisconsin’s complex real estate laws. From reviewing leases to assisting with tenant disputes, we provide clear, actionable guidance to protect your assets and minimize risk.