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The only 5 eviction defenses

Posted by Brian Schuk | Aug 31, 2018 | 0 Comments

Tenants can come up with what seems like one million excuses as to why they should not be evicted. But, did you know that there are only 5 permitted defenses to an eviction action? The court has authority to determine whether or not a tenant's excuse falls within one of the five defenses. If one of these defenses is not raised by a tenant at an initial appearance, then they do not have solid ground to stand on and you should get a judgment that day.

The permitted defenses, as described in Scalzo v. Anderson, 87 Wis. 2d 831, 849, 275 N.W 2d 894 (1979), are as follows:

  1. Whether the relationship of the landlord and the tenant exists between the parties;
  2. Whether the tenant is holding over;
  3. Whether proper notice was given;
  4. Whether the landlord has proper title to the premises; and
  5. Whether the landlord is attempting retaliatory eviction.

The tenant may also challenge a technical defect in the pleadings or procedure or may claim improper service of the notice (which is related to defense #3). The first three defenses are relatively self-explanatory.

Defense #4 is unique in the fact that, if raised, the answer needs to be written. An eviction is meant to be a quick proceeding, so all other defenses can be entered verbally. However, if title is being questioned, the answer needs to be in a written form.

The final defense a tenant can claim is that the eviction is a retaliatory eviction. A landlord may not increase rent, decrease services or commence an eviction if: 1) a tenant makes a complaint about a defect in the premises to a public official or local housing code agency, 2) a tenant makes a complaint to the landlord about a violation of a local housing code, or 3) a tenant exercises any other legal right relating to residential tenancies.

If a tenant does not raise one of these defenses, he/she does not have a proper defense. This information should be useful to both tenants and landlords. As a landlord, you need to know what types of defenses a tenant can raise, and you can double-check to make sure you have a proper right to an eviction. As a tenant, you can see if your landlord has properly served you with an eviction that can hold up in court.

About the Author

Brian Schuk

Brian A. Schuk focuses his practice mainly on landlord-tenant law, representing both landlords and tenants. After being a partner of Wassel, Harvey & Schuk, LLP for 12 years, Mr. Schuk opened his own law firm, Schuk Law, LLC, in June of 2017. He continues to offer experienced ...

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