Tenant Defenses for Eviction

In Wisconsin, landlords can evict tenants for reasons like nonpayment of rent, lease violations, or expiration of a lease. However, tenants have several legal defenses they can raise to challenge or delay an eviction. These defenses come from Wisconsin Statutes, Administrative Code, and case law. Understanding these can help tenants protect their housing rights.

Improper Notice of Termination

Before filing an eviction lawsuit, a landlord must provide the tenant with a proper written notice, such as a 5-day or 14-day notice depending on the reason for eviction and the type of lease.

• Statute: Wis. Stat. §§ 704.17(1)–(3)
• Common Errors:
  • Wrong notice type (e.g., 14-day notice without right to cure used when a 5-day with right to cure is required)
  • Missing required language (e.g. date notice expires or amount of rent past due)
  • Improper delivery (must be delivered per Wis. Stat. § 704.21)
  • Filing the eviction before the expiration date on the notice

Defense: If the notice was incorrect, not properly served, or if the eviction is filed too soon, the eviction case may be dismissed.

Retaliatory Eviction

It is illegal for a landlord to evict a tenant in retaliation for the tenant asserting their legal rights—such as reporting building code violations, requesting repairs, or joining a tenant union.

• Statute: Wis. Stat. § 704.45
• Key Provisions:
  • Landlord must prove eviction was for a legitimate, non-retaliatory reason
  • Retaliation is not a defense to an eviction based on non-payment of rent, unless the rent was increased for a retaliatory reason and the tenant refused to pay the increased amount.

Defense: If the tenant can show they recently exercised a protected right, the eviction may be considered retaliatory and barred by law.

Discrimination

Evictions based on race, sex, disability, family status, or other protected categories violate federal and state fair housing laws.

• Statute: Wis. Stat. § 106.50 (Wisconsin Fair Housing Law)
• Federal Law: 42 U.S.C. § 3604 (Fair Housing Act)

Defense: If eviction or termination of tenancy is due to a discriminatory reason, it is unlawful. A tenant may file a complaint with the Wisconsin Equal Rights Division or the U.S. Department of Housing and Urban Development (HUD).

Cure of Default

When a tenancy is terminated “for cause” by a notice that gives a right to cure (e.g. a 5-Day Notice), the tenant can cure the default and avoid the termination of the tenancy. Any eviction filed on the basis of a notice that was properly cured is invalid.

• Application: Common in nonpayment cases. If the landlord accepts full rent after issuing a termination notice, but before expiration of the time to cure set out in the notice, the eviction may be invalid.

Caution: If full payment is made after service of a notice that does not contain a right to cure (e.g. a 14-Day Notice) or after the expiration of the time to cure, the landlord can still proceed with an eviction. Tenants should get an agreement in writing from their landlord that acceptance of the payment means the tenancy will continue. 

Failure to Maintain Property/Warranty of Habitability

Landlords are required to maintain rental units in a safe and habitable condition.

• Statutes:
  • Wis. Stat. § 704.07 (landlord’s duty to maintain premises)
  • Wis. Admin. Code ATCP § 134.04(2) (safety and habitability rules)

Defense: If the landlord failed to provide a livable home (e.g., no heat, water, or serious infestations), the tenant may argue the landlord breached the warranty of habitability, and rent should be reduced -. This may act as a defense if the eviction is based on allegations of non-payment of rent. 

Caution: Tenants can never withhold 100% of the rent while remaining in the premises. (Wis. Stat. §704.07(4)) Tenants should document all repair issues and will need to show they notified the landlord and gave a chance to fix the problem.

Improper Eviction Procedure

Even with a valid reason, landlords must follow legal procedures to evict a tenant.

• Statute: Wis. Stat. § 799.40
• Examples of improper procedure:
  • Landlord uses “self-help” eviction (changing locks, removing belongings, shutting off utilities) – illegal under Wis. Stat. § 704.44(9) and ATCP § 134.09(7)

Defense: If the landlord tried to evict without going through the court process, the eviction is unlawful, and the tenant may sue for double damages as an “unfair trade practice”.

Landlord Violated Rental Agreement or Laws

If the landlord themselves violated the lease or rental laws, it could serve as a defense.

• Examples:
  • Illegal lease clauses (ATCP § 134.08 lists prohibited provisions)
  • Failure to disclose building code violations (ATCP § 134.04(2)(a))
  • Security deposit violations (ATCP § 134.06)

Defense: Depending on the violation, the tenant may argue that the landlord’s behavior invalidates the eviction or entitles them to damages.

Eviction Based on Domestic Violence

Tenants who are victims of domestic abuse have special protections under state law.

• Statutes: Wis. Stat. §§ 704.14 and 106.50(5m)(d)
• Key Protections:
  • Landlords cannot evict solely due to a tenant being a victim of domestic abuse, sexual assault, or stalking
    • Note that the landlord might require the tenant to take steps to bar the perpetrator of the domestic violence from returning to the tenant/victim’s home, such as obtaining a restraining order
  • Tenants who are fleeing domestic violence, sexual assault, or stalking may also terminate a lease early without penalty under certain conditions (Wis. Stat. § 704.16)

Defense: If the eviction is based on incidents related to abuse, and the tenant is the victim, the eviction may be dismissed.

Eviction Due to Covid-19 Hardships (Time-Sensitive)

While most COVID-era protections have ended, courts may still consider equitable defenses if eviction is tied to pandemic-related hardships and the tenant has made good-faith efforts to pay rent or seek aid.

Legal Basis: Not statutory—may be considered under the court’s equity powers.

Improper or Illegal Lease Provisions

Leases cannot include certain illegal or unfair clauses. If a lease contains one of these, it could make the entire lease void and unenforceable.

• Wis. Stat. § 704.44 and Wis. Admin. Code ATCP § 134.08 prohibit terms such as:
  • Permitting the landlord to engage in “self help” or non-judicial eviction;
  • Making the tenant liable for property damage caused by natural disasters
  • Requiring tenant to pay the landlord’s actual attorney fees

Case Law: Baierl v. McTaggart, 2001 WI 107 – A lease with illegal terms may not be enforced in eviction proceedings.

Public Housing/Additional Federal Protections

Tenants in public housing have additional rights under federal law, including the right to renew their lease absent “good cause” for non-renewal.

• Federal Law: 42 U.S.C.A. § 1437 and 24 CFR § 247.3 (grounds for eviction or non-renewal in public housing)
• Tenants must receive written notice with specific reasons
• Evictions and non-renewals must be for good cause (e.g., serious lease violations or repeated minor violations)
  • For minor lease violations, the tenant must have received prior written notice that continued violations of the kind could result in termination of the tenancy
• In most circumstances, public housing tenants threatened with non-renewal or eviction are entitled to a pre-eviction grievance process. Failure to provide notice of the right to grievance process or failure to provide a grievance hearing can be the basis for dismissal of the eviction action.

Defense: If a tenant in public housing is evicted without good cause or without following required procedures, the eviction may be dismissed.

In all cases, tenants have the right to appear in court, present defenses, and appeal decisions. Legal aid organizations, tenant resource centers, and housing attorneys can help tenants understand their rights and prepare their case.

Eviction Defenses Available to Tenants in Wisconsin

A tenant who chooses to fight an eviction in Wisconsin may have several defenses available to them.

Landlord Used "Self-Help" Procedures to Evict Tenant

A landlord must receive permission from the court to evict a tenant. The landlord cannot resort to "self-help" measures, such as shutting off utilities or changing locks on the doors of the rental unit (see Wis. Adm. Code § ATCP 134.09 (7)). If the landlord does attempt to force a tenant out of a rental unit through such means and does not have a court order, then the tenant can sue the landlord for damages.

Landlord Did Not Evict the Tenant Using Proper Procedures

A landlord must carefully follow all the rules set forth in the Wisconsin state law regarding evictions. For example, if a landlord files an eviction case in small claims court but hasn't given the tenant written notice to pay the rent or leave, then the tenant could use lack of notice as a defense against the eviction. Similarly, if the landlord does give written notice to the tenant, but only gives the tenant three days to fix a lease violation or pay rent, instead of the five days required by law, the tenant could use this as a defense in fighting the eviction. This type of defense does not completely stop a justified eviction; it merely delays it. The landlord would be required to stop the eviction action and give the tenant the required proper notice. The landlord would then be able to proceed with the eviction case if the tenant still did not pay rent or fix the lease violation.

Tenant Property Abated Rent

A tenant may have a few defenses available if being evicted for not paying rent. However,  if the tenant paid partial rent but withheld (“abated”) part of the rent due to serious structural or habitability issues, that may be a defense (i.e. the tenant paid all the rent that was due, even though they paid less than full rent).

Tenant Cured/Paid Rent in Full After Notice

Much of the time, if a tenant fails to pay full rent by the due date, the landlord must give the tenant a “right to cure,” usually five days, included in the notice of termination. If the tenant pays the rent during this five-day period, the landlord cannot proceed with the eviction lawsuit (see Wis. Stat. Ann. § 704.17(2)(a)). If the tenant does pay rent during the five days, the tenant should get a time-stamped receipt to prove the rent payment was received within the proper time frame. Then, if the landlord still proceeds with the eviction lawsuit, the tenant can use the time-stamped receipt as a defense against the eviction.

Caution: a tenant may not be entitled to a right to cure if they have previously received a notice with a right to cure within the past year, or if they are a month to month tenant. 

Landlord Failed to Properly Maintain the Rental Unit

Wisconsin law requires a landlord to reasonably repair a rental unit, as long as the tenant did not purposefully or negligently cause damage to the rental unit. This means the landlord must make any structural repairs needed to keep the unit a fit and safe place to live and repair or replace any major appliances that came with the unit.

See Wis. Stat. Ann. § 704.07(2)(a)for details.

If the landlord fails to properly maintain the rental unit in a habitable condition, or make needed major repairs in a timely manner, the tenant has a few options:

1. The tenant can move out of the rental unit. If the tenant chooses this option, the tenant would no longer have to keep paying rent and the landlord would have to refund any prepaid rent back to the tenant. The landlord would not be able to sue the tenant for unpaid rent after the date the tenant moved out.
2. The tenant can withhold a portion of the rent, but the tenant is not authorized to withhold rent in full.

See Wis. Stat. Ann. § 704.07(4).

If the landlord fails to make necessary repairs and the tenant does not wish to move out of the rental unit, the best practice for the tenant would be to call their local building inspector or seek the advice of an attorney. Some municipalities have “rent abatement” procedures and schedules for home much rent can lawfully be withheld for certain conditions. These procedures usually require an inspection to identify the issues. The landlord will then be cited and given a chance to make repairs. Failure to make repairs gives the tenant the option to ask the city council for an abatement order. Or the tenant cango directly to court for an order specifying how much rent the tenant should be paying until the repairs are made. If the landlord tries to evict the tenant because the tenant is not paying the full amount of rent, the tenant can use evidence of failure to maintain the rental property as a defense against the eviction.

Tenant is Evicted for Violating the Lease Agreement

Just like with failure to pay, much of the time, the landlord must give the tenant a “right to cure” a lease violation, usually five days, included in the notice of termination.  The tenant “cures” the violation by taking reasonable steps towards fixing the issue within the five days.The tenant should provide evidence or a written statement to the landlord explaining what steps they have taken towards fix, what other steps they expect to take, and a timeline for the fix. For example, if the landlord gives the tenant a 5-Day Notice to remove a junk car from the premises, the tenant can “cure” the violation by making arrangements for a tow truck to remove the car. As long as the arrangements are made within the five day period, and the landlord is informed of it (preferably in writing), then the lease violation is “cured.” As another example, if the landlord gives the tenant a 5-Day Notice to stop smoking in a non-smoking unit, the tenant can “cure” the lease violation by informing the landlord (preferably in writing) that they will not smoke in the unit in the future. If the tenant cures the lease violation within the five-day time period, the landlord cannot proceed with the eviction. The tenant can use evidence of the lease violation being fixed as a defense against the eviction, if the landlord proceeds with an eviction lawsuit anyway (see Wis. Stat. Ann. § 704.17(2)(b)).

Caution: a tenant may not be entitled to a right to cure if they have previously received a notice with a right to cure within the past year, or if they are a month to month tenant. 

Tenant is Evicted Based on Discrimination

The federal Fair Housing Act makes it illegal for a landlord to discriminate against a tenant based on race, religion, gender, national origin, familial status (including children under the age of 18 and pregnant women), and disability. In addition to the protections given under the federal Fair Housing Act, the Wisconsin Fair Housing Law also makes it illegal for a landlord to discriminate based on color, sexual orientation, marital status, status as a victim of domestic abuse, sexual assault, or stalking, lawful source of income, age, or ancestry. If a landlord tries to evict a tenant based on any of these characteristics, the tenant can use the discrimination as a defense to the eviction.

In addition, if the alleged violation of the lease or rental agreement is due to a tenant’s disability, the tenant has the right to a “reasonable accommodation” or “reasonable modification” to the rental agreement or unit. Failure of the landlord to agree to a reasonable accommodation or reasonable modification can be a defense to an eviction brought because of issues related to the tenant’s disability.

When Do You Present Your Defense?

Tenants must present at least one valid legal defense at the initial hearing or return date for an eviction. Failure to present a legal defense could result in default judgment of eviction being taken against you. You will not need to prove your defense at the initial hearing, but you will need to state it on the record in order for the case to be scheduled for a trial. Some counties allow the tenant to state their legal defense in writing, called an “Answer.” The Summons, which will be served along with the Complaint if an eviction is filed against you, will tell you how and when to present your legal defense. Once the case is scheduled for trial, tenants should prepare to prove their defense(s) with evidence. Remember, your sworn testimony at trial is evidence. But, if you have supporting documents or pictures, you should plan to bring them to the trial. Most courts want you to bring three copies of anything you plan to use as evidence. 

Counterclaims

A counterclaim in an eviction lawsuit is when a tenant files a claim against the landlord in response to the eviction lawsuit. In addition to providing a defense, the tenant argues that the landlord has broken the law. A common counterclaim is that the landlord engaged in “unfair trade practices," such as using a lease with illegal lease terms or trying a self-help eviction. An unfair trade practices counterclaim entitles the tenant to ask the court for double out of pocket monetary damages. 

Another common counterclaim is that the landlord filed the eviction action because of discrimination or in retaliation for protected activity, and not due to a lease violation.