Can your landlord kick you out for saying you have a right not to get kicked out by your landlord just for saying that? (Still with me?)

The customer is always right, as the saying goes, and sometimes, the customer has rights, something that more businesses would do well to remember.

Which is to say, I have had reason this week to be thinking about retaliatory evictions, and when they exist and when they don't, not surprising in a market that is considered to be saturated with willing renters and landlords who suddenly have a glut of customers.

Imagine you're a grocer, and you're trying to establish yourself in a neighborhoood.  You'd probably have sales and deals to get people in the door and be really nice to them once they're in the door and keep the store clean and bright and you'd do everything you could to encourage them to come back.

Now imagine that all the other grocery stores disappear, and the only place people can go is your store -- and some of those customers who were there from the start, well, they're a little slow to shop, they never spend much, they always take an extra free sample from the pizza aisle... they're kind of a pain.

Would you encourage them just to leave, to make room for newer customers who were more desperate and would probably spend more because they've got no other choice? Would you let quality slip because, hey, where else they gonna go, am I right?

If so, you might be a residential landlord!  Now, not every landlord goes and kicks people out simply because there's someone else willing to pay more, and that's not illegal anyway (well, it would be, if the landlord claimed you were breaching your lease when you weren't) although it may be bad business. 

What is illegal is kicking you out (when you're not in breach of your lease as to rent) for your exercise of a few rights that landlords might find annoying -- namely, your exercise of your rights as a tenant to live in a safe, clean apartment.

Section 704.45 of the Wisconsin Statutes provides you protection from 'retaliatory' evictions:

704.45  Retaliatory conduct in residential tenancies prohibited.
 

(1) Except as provided in sub. (2), a landlord in a residential tenancy may not increase rent, decrease services, bring an action for possession of the premises, refuse to renew a lease or threaten any of the foregoing, if there is a preponderance of evidence that the action or inaction would not occur but for the landlord's retaliation against the tenant for doing any of the following:

(a) Making a good faith complaint about a defect in the premises to an elected public official or a local housing code enforcement agency.

(b) Complaining to the landlord about a violation of s. 704.07 or a local housing code applicable to the premises.

(c) Exercising a legal right relating to residential tenancies.

(2) Notwithstanding sub. (1), a landlord may bring an action for possession of the premises if the tenant has not paid rent other than a rent increase prohibited by sub. (1).

(3) This section does not apply to complaints made about defects in the premises caused by the negligence or improper use of the tenant who is affected by the action or inaction. 

 

The eviction isn't retaliatory unless it's done solely based on a tenant doing one of the three things protected by the statute (Dickhut v. Norton, 45 Wis.2d 389, 399, 173 N.W.2d 297, 302 (1970)), and here's the thing about that:

If you sue a landlord for, or raise as a defense, retaliatory eviction, the case will likely be heard by judge, because to get a jury trial in an eviction action, you've got to make the demand and pay the fees at the time you first appear in court (sec. 799.21), so if you show up to argue with the landlord and then demand a trial and then want a jury trial, you may have waived one already, and you're stuck.

And what's wrong with a judge? Maybe nothing, maybe everything -- because the judge has to decide if you not only did one of the protected things, but if the landlord's sole motivation was to retaliate against you for doing that.  And do you want that decision made by one judge, or by 6 (or 12) jurors hearing your side of things and determining whether the landlord's excuse for not wanting to renew your lease or raising your rent is really the reason?

That's a decision best made by someone who knows the judge in question, too -- which is why it's a good idea to call a lawyer.  Oh, and if you win your case, you may be able to get your attorney's fees repaid to you, whereas the landlord never gets hers reimbursed.