Wisconsin Security Deposits: No Statewide Amount Cap and a 21-Day Return
James Brazil lives in Mérida, Mexico. He founded Swift Agent Sites and studied Classics at the University of Mississippi.
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Wisconsin does not set a general statutory cap on the amount of a residential security deposit. A landlord must return the deposit, minus amounts that may lawfully be withheld, within 21 days after the applicable trigger date, and must send a written statement that accounts for any withholding.
Those rules come from section 704.28 of the Wisconsin statutes and from ATCP 134.06, which the Department of Agriculture, Trade and Consumer Protection administers. They apply to residential tenancies.
What may a landlord withhold, and when is the deposit due back?
When a landlord returns a security deposit after the tenant vacates, the landlord may withhold only amounts reasonably necessary to pay for: tenant damage, waste, or neglect of the premises, except that normal wear and tear may not be withheld; unpaid rent for which the tenant is legally responsible, subject to section 704.29; payment the tenant owes under the rental agreement for utility service provided by the landlord but not included in the rent; payment the tenant owes for direct utility service provided by a government-owned utility, to the extent the landlord becomes liable for the tenant's nonpayment; unpaid monthly municipal permit fees assessed against the tenant under section 66.0435(3), to the extent the landlord becomes liable; and any other payment for a reason provided in a nonstandard rental provision document.
Nonstandard withholding reasons are allowed only if they are in a separate written document titled "NONSTANDARD RENTAL PROVISIONS." The landlord must specifically identify each such provision with the tenant before the tenant enters into the rental agreement. If the tenant signs or initials by a nonstandard provision, that signature or initial creates a rebuttable presumption that the provision was identified and agreed to. Section 704.28 does not authorize withholding for normal wear and tear, or for damages or losses for which the tenant cannot reasonably be held responsible.
The 21-day clock starts on one of these trigger dates:
- If the tenant vacates on the termination date of the rental agreement, that termination date
- If the tenant vacates or is evicted early, the date the rental agreement terminates, or, if the landlord rerents earlier, the date the new tenant's tenancy begins
- If the tenant vacates or is evicted after the termination date, the date the landlord learns the tenant has vacated or has been removed under section 799.45(2)
ATCP 134.06 repeats the same 21-day timing. If any portion is withheld, the landlord must, within that same period and in the same manner, deliver or mail a written statement that describes each item of physical damage or other claim and the amount withheld as reasonable compensation for each item. A landlord may not intentionally misrepresent or falsify a claim, including the cost of repairs. If the tenant does not leave a forwarding address, a landlord who otherwise complied is not in violation solely because the postal service could not complete delivery, but that does not take away other rights the tenant may have to the return of the deposit.
A rent payment in excess of one month's prepaid rent is treated as a security deposit under the ATCP 134 definition. The chapter does not stop a landlord from collecting more than one month's prepaid rent, but any excess held when the tenant surrenders the premises must be treated as a security deposit and returned on the 21-day timeline.
What check-in rights do you have at the start of the tenancy?
Before a landlord accepts a security deposit, or converts an earnest-money deposit to a security deposit, the landlord must notify the tenant in writing that the tenant may, by a specified deadline that is not less than seven days after the start of tenancy, inspect the dwelling and notify the landlord of preexisting damages or defects, and may request a list of physical damages or defects charged to the previous tenant's security deposit. If the tenant requests that list, the landlord must provide it within 30 days after the request, or within seven days after the landlord notifies the previous tenant of deductions, whichever is later, without disclosing the previous tenant's identity or the amounts withheld.
Use that inspection window. Take dated photos, send a written list of preexisting problems, and keep a copy. Those notes are often the difference between wear and tear and a later deduction. DATCP also publishes tenant-rights materials that explain these residential rental rules in consumer language.
If a deposit is not returned on time, or the statement looks padded, you can complain to DATCP and may have private remedies, including claims connected to ATCP 134. Keep the lease, the check-in list, move-out photos, your forwarding address, and the landlord's statement.
FAQ
Is there a Wisconsin cap of one or two months' rent on a security deposit?
No general statutory cap on the amount of a residential security deposit is stated in section 704.28 or ATCP 134.06. Prepaid rent above one month is treated as a security deposit when you leave.
How quickly must the deposit be returned?
The landlord must deliver or mail the deposit, minus lawful deductions, within 21 days after the trigger date in section 704.28(4) and ATCP 134.06(2).
Does the landlord have to explain deductions?
Yes. If any portion is withheld, ATCP 134.06(4) requires a written statement, sent on the same 21-day timeline, that describes each item and the amount withheld.
Can a landlord deduct for normal wear and tear?
No. Section 704.28(3) and ATCP 134.06 do not authorize withholding for normal wear and tear, or for losses the tenant cannot reasonably be held responsible for.
If a Wisconsin landlord is holding a deposit after a move-out, talk with a licensed local agent if a related insurance question arises, and use the official 21-day and itemization rules in section 704.28 and ATCP 134.06.
Sources: Wisconsin Statutes section 704.28; Wisconsin Administrative Code ATCP 134.06.
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