Beware of Clauses Requiring More than 28-Days’ Notice to Terminate Month-to-Month Tenancies

By Atty. Gary D. Koch

Clauses requiring tenants to provide 60-Day Notice to terminate a month-to-month tenancy are popular – we see them a lot in rental agreements. Recently, though, we have seen the Wisconsin Department of Agriculture, Trade and Consumer Protection take issue with such clauses in rental agreements in month-to-month tenancies that require the tenant to give anything more than a 28-Day Notice to terminate the tenancy.

These DATCP challenges can end one of two ways: the landlord can fight the Department, or, more likely, the landlord concedes and removes the clause from its rental agreements, potentially paying a fine for the pleasure of doing so.

We have not yet had a client want to fight DATCP on this issue, but we believe that there may be statutory grounds to do so.

The DATCP’s argument is found in Wisconsin Administrative Code § 134.06(3)(a)(2), prohibiting withholding from the security deposit for any charges other than for “Unpaid rent for which the tenant is legally
responsible, subject to s. 704.29, Stats.” (Emphasis added). The Department believes that any notice period more than 28 days is illegal.

Wisconsin Statute § 704.19 discusses what notices are necessary to terminate periodic tenancies, such as month-to-month tenancies. Pursuant to Wis. Stat. § 704.19(3), “At least 28 days’ notice must be given” to terminate a month-to-month tenancy (emphasis added). It seems pretty straightforward that “at least” does not mean “exactly”.

Elsewhere in the same statute, we find that a month-to-month tenancy can be terminated “only by giving to the other party written notice complying with this section, unless any of the following conditions is met: (1) [t]he parties have agreed expressly upon anther method of termination and the parties’ agreement is established by clear and convincing proof.” (Emphasis added). Again, it seems pretty straightforward that a clause in the lease calling for a 60-Day Notice to terminate the month-to-month tenancy would be clear and convincing proof that the parties have expressly agreed upon another method of termination.

Nevertheless, the Department takes the position that landlords can ONLY require a 28-Day Notice to terminate the tenant’s month-to-month tenancy.

Do these arguments win? That remains to be seen. It might be a serious undertaking to find out the answer, but Petrie + Pettit is certainly ready to take on that challenge with you!