DATCP Adopts Temporary Rule to Prohibit Landlord Late Fees

Jeff Storch , Richard L. Schmidt , Julia Potter | 05.01.20

Effective April 25, 2020, the Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) adopted an emergency rule that creates a temporary prohibition on charging late rent fees or late rent penalties for any nonpayment or late payment of rent during and for 90 days after the current public health emergency.

The temporary rule adds new subsection (8)(d) to existing Wis. Admin. Code Sec. ATCP 134.09 (“Prohibited Practices”), which now reads as follows: 

(8) Late rent fees and penalties.

1. No landlord may charge a late rent fee or late rent penalty to a tenant, except as specifically provided under the rental agreement. 
2. Before charging a late rent fee or late rent penalty to a tenant, a landlord shall apply all rent prepayments received from that tenant to offset the amount of rent owed by the tenant. 
3. No landlord may charge any tenant a fee or penalty for nonpayment of a late rent fee or late rent penalty. 
4. During an emergency declared pursuant to Wis. Stat. s. 323.10 and for the 90 days following the expiration of the emergency, no landlord may charge any tenant a fee or a penalty for nonpayment of rent or late payment of rent.

This new temporary rule should be read in conjunction with Governor Evers’ ​“Emergency Order #15,” which generally prohibits the following acts by landlords during the 60 day period from and after March 27, 2020: 

• Serving any notice terminating a tenancy for failure to pay rent. 
• Serving any notice terminating a tenancy, unless the notice is accompanied by an affidavit in which the affiant states that the eviction is not based on failure to pay rent, that he or she reasonably believes that failure to commence eviction proceedings will result in an imminent threat of serious physical harm to another person, and the basis of that belief (“Threat Affidavit”).
• Commencing a civil action of eviction, unless the eviction action is not based on failure to pay rent and is accompanied by a Threat Affidavit.
• Delivering a writ of restitution to the sheriff (nor may the sheriff act on eviction orders), unless the eviction order is not based on failure to pay rent and the writ is accompanied by a Threat Affidavit.

NOTE THAT ORDER #15 DOES NOT APPLY TO A TENANT WHO WRONGFULLY HOLDS OVER AFTER EXPIRATION OF A LEASE. 

Tenants are reminded that although the above rule and Order place certain limits on the rights of a landlord, neither excuses a tenant from fully and timely performing its obligations under a lease (except only incurring late fees or penalties while ATCP 134.09(8)(d) is in effect). Any unpaid rent or other payments due under the lease will continue to accrue.

Landlords are reminded that violation of ATCP 134.09 could subject a landlord to double damages and attorney fees incurred by a tenant, by operation of Sec. 100.20(5), Stats. 

• Real Estate/Leases