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:
- Whether the relationship of the landlord and the tenant exists between the parties;
- Whether the tenant is holding over;
- Whether proper notice was given;
- Whether the landlord has proper title to the premises; and
- 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.
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