One of the most common questions or misunderstandings we see among residential landlords is: When is the appropriate situation to use a 5-Day Notice to Pay/Cure or Quit (a “5-Day”) versus a 14-Day Notice Terminating Tenancy (a “14-Day”), which does not give the tenant the ability to cure the default and continue to reside in the premises? The answer depends on a few factors, starting with the type of tenancy.
Tenancies for a Year or Less, or Year-to-Year Tenancies
One of the most common types of residential tenancy is a tenancy for a year or less – usually, a one-year lease, where rent is payable on a monthly basis. Generally speaking, it is helpful to look at all lease violations as belonging in one of two “buckets” (our term, not the Wisconsin statutes’). The first bucket pertains solely to rent payment, the second to “material waste” and all other lease violations beyond rent payment. In these types of tenancies, the first instance of a lease violation in either bucket requires a 5-Day, with the right to cure, before a landlord can take any action. After a second or subsequent notice of a violation from the same bucket within a year of the first, a landlord may issue a 14-Day and not give the tenant the right to cure. However, they may do so only if they issued a 5-Day for a previous violation in the preceding year. The year is a rolling period, and does not have to be within the same lease year.
As an example, let’s say a tenant does not pay rent for the month of May when it comes due. A landlord, if they want to eventually be able to evict the tenant for unpaid rent, must first issue a 5-Day notice notifying the tenant of the amount due and giving the tenant 5 days to pay. If the tenant pays within 5 days, the default is cured and the lease continues. If the tenant does not pay within 5 days, the landlord may file for eviction. If that tenant pays his rent within 5 days, but then is late on rent again for November’s rent, the landlord may issue a 14-Day notice terminating tenancy without giving the tenant the right to cure. The landlord has the option, though, to issue another 5-Day notice with the right to cure as well. The landlord may never, with rare exception discussed below, issue a 5-Day without a right to cure.
Similarly, if a landlord issues a 5-Day to a tenant due to a violation of the lease in June, say for playing music too loudly on a regular basis and drawing complaints from the neighbors, and the landlord received similar complaints again in September, the Landlord could give a 14-Day without a right to cure at that point, or another 5-Day with a right to cure. The same is true if the September violation is for violating another term in the lease, such as having an unauthorized occupant. The violations need not relate to the same term or rule in the lease; they just need to have nothing to do with payment.
The only caveat to that is, again, the “buckets” of (a) rental payments and (b) all other rule violations. So, if a tenant does not pay March rent and, pursuant to a 5-Day, cures the default in a timely manner, the landlord must issue a 5-Day (and not a 14-Day) if the tenant is later found to be housing an unauthorized occupant in the unit.
One thing that we have seen with frequency is, after a 5-Day goes uncured, a landlord will issue a 14-Day for the same violation (not a new instance). This is unnecessary; the landlord may bring an eviction case after the 5-Day goes uncured.
The rules described above also apply to month-to-month tenancies, with a few modifications. A landlord must follow the 5-Day and 14-Day procedures followed above for nonpayment of rent and may follow the same procedures for breaches of any other term of the lease. However, the statutes also specifically allow a landlord in a month-to-month tenancy to terminate the tenancy for a violation of a lease term unrelated to payment of rent with a 14-Day, without a right to cure, regardless of whether this is the first violation of the lease or not.
Landlords may also opt to non-renew the lease at any time and for no reason (unless in a mobile home community, then good cause is required) by serving a 28-Day notice. That notice only becomes effective at the end of a period. For example, if a tenant is on a month-to-month lease with rent due at the first of the month, the landlord may decide to non-renew the tenancy on June 15 and issue a 28-Day notice then, but the notice would not be effective until the end of July, as opposed to July 15.
Exception to the Right to Cure a Default on a 5-Day Notice
As we mentioned above, if the landlord is issuing a 5-Day, it must always include the right to cure within that five-day period, except in certain situations. These situations, set by state statute, are in cases of domestic violence leading to a restraining order or criminal complaint, or for criminal activity (including drug manufacture or distribution, but not possession) that threatens the health, safety, or right to peaceful enjoyment of the premises of other tenants or health and safety of the landlord or landlord’s agents. If such a scenario occurs, the landlord need not give the tenant the option to remedy the situation, but the notice must inform the tenant of the allegations against them and of the tenant’s right to challenge the veracity of the allegations in the eviction proceedings.
Knowing which notice to use can be complicated, and there are often strategic considerations as well. As always, if you have questions about your rights and obligations as a landlord under state law or any local orders or ordinances, feel free to contact the landlord attorneys at Kramer, Elkins & Watt, LLC at 608-709-7115 or var un=’info’;var hn=’kewlaw.com’;document.write(‘‘+un+’@’+hn+”);.