Wisconsin Statutes
Wis. Stat. § 799.40 (2026)
Eviction actions
✓ current as of July 2026
Find cases:
SyfertCases citing this section
WI-LEGdocs.legis.wisconsin.gov
JustiaChapter on Justia
CornellLII Search
CasesGoogle Scholar
799.40(1)(1) When commenced. A civil action of eviction may be commenced by a person entitled to the possession of real property, or by that person’s agent authorized in writing, to remove therefrom any person who is not entitled to either the possession or occupancy of such real property.
799.40(1g)(1g) Notice terminating tenancy. If a landlord gives a notice terminating tenancy under s. 704.16, 704.17, or 704.19 through certified mail in accordance with s. 704.21 (1) (d), proof of certified mailing from the United States post office shall be sufficient to establish that proper notice has been provided for the purpose of filing a complaint or otherwise demonstrating that proper notice has been given in an eviction action, and an affidavit of service may not be requested to establish that proper notice has been provided.
799.40(1m)(1m) Acceptance of rent or other payment. If a landlord commences an action under this section against a tenant whose tenancy has been terminated for failure to pay rent or for any other reason, the action under this section may not be dismissed because the landlord accepts past due rent or any other payment from the tenant after serving notice of default or after commencing the action.
799.40(1s)(1s) No waiver by landlord or tenant. It shall not be a defense to an action of eviction or a claim for damages that the landlord or tenant has previously waived any violation or breach of any of the terms of the rental agreement including, but not limited to, the acceptance of rent or that a custom or practice occurred or developed between the parties in connection with the rental agreement so as to waive or lessen the right of the landlord or tenant to insist upon strict performance of the terms of the rental agreement.
799.40(2)(2) Joinder of other claims. The plaintiff may join with the claim for restitution of the premises any other claim against the defendant arising out of the defendant’s possession or occupancy of the premises.
799.40(4)(a)(a) The court shall stay the proceedings in a civil action of eviction if the tenant applies for emergency assistance under s. 49.138, except that no stay may be granted under this paragraph after a writ of restitution has been issued in the proceedings. If a stay is granted, the tenant shall inform the court of the outcome of the determination of eligibility for emergency assistance. The stay remains in effect until the tenant’s eligibility for emergency assistance is determined and, if the tenant is determined to be eligible, until the tenant receives the emergency assistance, except that the stay may not remain in effect for more than 10 working days, as defined in s. 227.01 (14).
799.40(4)(b)(b) The court shall stay the proceedings in a civil action of eviction against a foreclosed homeowner, as defined in s. 846.40 (1) (b), under the circumstances and as provided in s. 846.40 (9).
799.40 HistoryHistory: 1979 c. 32 s. 66; 1979 c. 176; Stats. 1979 s. 799.40; 1991 a. 39; 1995 a. 289; 2009 a. 2; 2011 a. 143; 2013 a. 76; 2017 a. 317.
799.40 AnnotationAny act of the landlord that renders the premises unfit for occupancy relieves the tenant from the obligation of paying rent. Constructive eviction can only take place when the tenant abandons the premises within a reasonable time after a substantial breach of the lease. First Wisconsin Trust Co. v. L. Wiemann Co. 93 Wis. 2d 258, 286 N.W.2d 360 (1980).
799.40 AnnotationImplicit in the sub. (4) mandate that a stay is required until the tenant receives the emergency assistance is a requirement that the tenant seek and find suitable permanent housing within a reasonable period of time and that the stay will remain in effect for only a reasonable period of time as determined by the judge under the circumstances in each individual case. McQuestion v. Crawford, 2009 WI App 35, 316 Wis. 2d 494, 765 N.W.2d 822, 08-1096.
799.40 AnnotationEviction practice in Wisconsin. Boden. 54 MLR 298.
799.40 AnnotationBurden of proof required to establish defense of retaliatory eviction. 1971 WLR 939.
799.40 AnnotationTenant eviction protection and takings clause. Manheim. 1989 WLR 925 (1989).
Notes of Decisions
Cited in 11
cases (8 in the last 5 years), 2003–2026 · leading case: McQUESTION v. Crawford, 2009 WI App 35 (Wis. Ct. App. 2009).
McQUESTION v. Crawford, 2009 WI App 35 (Wis. Ct. App. 2009). “1 Crawford submits that pursuant to Wis. Stat. § 799.40 (4) (2007-08), 2 the trial court did not have the authority to lift an emergency assistance stay after he was found eligible for emergency assistance, see Wis.”
Eric D. Olmanson v. Brenda Weits (Wis. Ct. App. 2021). “§ 799.40. Following the agreed premise by both parties that Weits was never a tenant of Olmanson, and applying controlling case law, I conclude that the court correctly determined that Olmanson could not pursue the eviction action.”
Highland Manor Assocs. v. Bast, 2003 WI App 130 (Wis. Ct. App. 2003). “The history of Wis. Stat. §§ 799.40 to 799.45 supports this conclusion.”
Antoinette Marie Pacheco v. Hoops Mgmt. LLC (Wis. Ct. App. 2025). “§ 799.40(1m) allowed Hoops to collect prospective September rent from Pacheco even after he had filed the affidavit of noncompliance, obtained a writ of restitution, and terminated the lease.”
Kirk Lewis v. Julie Bauer Burkholder (Wis. Ct. App. 2025). “2d 696 (1991) (eviction procedures of § 799.40 “do not apply” when a property owner seeks to remove a non-tenant occupant).”
Eric Moore v. Corey Burger (Wis. Ct. App. 2022). “§ 799.40(1) (stating that an eviction action may be commenced by a person entitled to the possession of real property to remove any person who is not entitled to either possession or occupancy of such property).”
Marwood Corp. v. Janesville Spatz Ltd. P'ship (Registered Name) (Wis. Ct. App. 2020). “§ 799.40, an eviction action may be commenced by a 10 Neither party contends that any provision of WIS.”
Carson D. Combs v. Lincoln Manor (Wis. Ct. App. 2021). “§ 799.40 8 The circuit court ordered that the damages claims could be raised in the amortization proceeding.”
Berrada Props. 66 LLC v. Chakari Lathan (Wis. Ct. App. 2023). “06 and §799.40, Burt was not properly authorized by Berrada Properties to act as its agent in the eviction action.”
1050 Lillian St, LLC v. Greenlock, LLC (Wis. Ct. App. 2024). “§ 799.40(1s) provides that “[i]t shall not be a defense to an action of eviction or a claim for damages that the landlord or tenant has previously waived any violation or breach of any of the terms of the rental agreement,” and the lease mirrors this statute, providing that…”
Bryan John Knutson v. Joseph Greggory Mercer (Wis. Ct. App. 2026). “§ 799.40. A lack of proper notice is a defense to an eviction.”
— Wis. Stat. § 799.40(1) — 3 cases
Eric D. Olmanson v. Brenda Weits (Wis. Ct. App. 2021). “§ 799.40. Following the agreed premise by both parties that Weits was never a tenant of Olmanson, and applying controlling case law, I conclude that the court correctly determined that Olmanson could not pursue the eviction action.”
Kirk Lewis v. Julie Bauer Burkholder (Wis. Ct. App. 2025). “2d 696 (1991) (eviction procedures of § 799.40 “do not apply” when a property owner seeks to remove a non-tenant occupant).”
Eric Moore v. Corey Burger (Wis. Ct. App. 2022). “§ 799.40(1) (stating that an eviction action may be commenced by a person entitled to the possession of real property to remove any person who is not entitled to either possession or occupancy of such property).”
— Wis. Stat. § 799.40(1m) — 1 case
Antoinette Marie Pacheco v. Hoops Mgmt. LLC (Wis. Ct. App. 2025). “§ 799.40(1m) allowed Hoops to collect prospective September rent from Pacheco even after he had filed the affidavit of noncompliance, obtained a writ of restitution, and terminated the lease.”
— Wis. Stat. § 799.40(1s) — 1 case
1050 Lillian St, LLC v. Greenlock, LLC (Wis. Ct. App. 2024). “§ 799.40(1s) provides that “[i]t shall not be a defense to an action of eviction or a claim for damages that the landlord or tenant has previously waived any violation or breach of any of the terms of the rental agreement,” and the lease mirrors this statute, providing that…”
— Wis. Stat. § 799.40(4) — 1 case
McQUESTION v. Crawford, 2009 WI App 35 (Wis. Ct. App. 2009). “1 Crawford submits that pursuant to Wis. Stat. § 799.40 (4) (2007-08), 2 the trial court did not have the authority to lift an emergency assistance stay after he was found eligible for emergency assistance, see Wis.”
— Wis. Stat. § 799.40(4)(b) — 1 case
Eric D. Olmanson v. Brenda Weits (Wis. Ct. App. 2021). “§ 799.40. Following the agreed premise by both parties that Weits was never a tenant of Olmanson, and applying controlling case law, I conclude that the court correctly determined that Olmanson could not pursue the eviction action.”
Annotations are extracted automatically from the opinions in the
Syfert caselaw corpus and ranked by authority, recency, and
treatment. Dots show Syfertize treatment of the citing case itself.