Lance E. Duroni
lduroni@kmksc.com
(414) 962-5110
The Wisconsin Court of Appeals recently overturned an eviction judgment despite the tenant having been admittedly behind on rent, finding that the landlord sent a defective notice of eviction and could not rely on proper notices sent previously to salvage the judgment.
Ruling on an issue of first impression in Wisconsin, Judge Jennifer Nashold held on January 8, 2026, that the landlord’s error—sending a five-day notice of eviction listing an incorrect deadline—ran afoul of notice requirements under Wis. Stat. § 704.17(2)(a), even though the tenant had received compliant notices in each of the preceding two months.
The dispute stems from an apartment lease between landlord Bryan Knutson and tenant Joseph Mercer. Soon after moving in, Mercer fell behind on rent. In August 2024, Knutson served Mercer with a “five-day notice” to pay back rent or vacate but did not end up evicting Mercer. In September 2024, Knutson again served Mercer with a five-day notice, but the parties came to a payment arrangement to avoid eviction. Both the August 2024 and September 2024 notices complied with Wis. Stat. § 704.17(2)(a).
Finally, on October 2, 2024, after Mercer continued to fail to pay amounts owed for rent under the lease, Knutson served Mercer with another five-day notice. However, the October 2 notice demanded that Mercer pay his $970 in unpaid rent by October 5, 2024 – providing only three days to cure the default when the statute requires five. Mercer again failed to pay, and Knutson filed an eviction complaint, which Mercer contested.
Before the trial court, Mercer did not dispute that he was behind on rent but sought to dismiss the eviction because he received a “five-day notice” that only gave him three days to pay. Knutson, the landlord, in turn, did not dispute that the October notice failed to comply with the five-day notice requirement. The trial court granted the eviction, overruling Mercer’s objection on the basis that, while Mercer was given an incorrect deadline, the tenant still had not paid the rent at the time of the hearing, more than 50 days later on November 22, 2024.
Perhaps sensing the vulnerability of the trial court’s reasoning to appeal, Knutson’s attorneys moved to supplement the record with the August and September eviction notices. Mercer promptly appealed the eviction judgment.
However, the Wisconsin Court of Appeals held that, even in light of the August and September notices, the eviction must be overturned due to the landlord’s defective October notice. Relying on persuasive authority from other states, the appeals court ruled that the most recent notice from October controls and the prior notices could not be relied on to sustain the eviction judgment. By giving notice purporting to terminate the tenancy on October 5 if Mercer did not pay rent, Knutson conceded that the tenancy still existed, erasing the effect of any prior notices, the judge ruled.
Moreover, the judge agreed with the tenant’s argument that allowing the eviction to stand would create deep uncertainty for tenants. Permitting a landlord to send serial notices and rely on any one she pleases would leave tenants confused as to when the landlord can file for eviction, when the tenant can cure a default, and when the tenant is on the hook for double rent for holding over under Wis. Stat. § 704.27, according to the appeals court.
The Mercer decision gives fair warning that Wisconsin judges will strictly enforce notice requirements for evictions and that more is not necessarily better when it comes to the number of eviction notices provided to tenants. Even though Mercer was, as a practical matter, on notice for three months that his eviction was imminent, Knutson reset the clock with each eviction notice he served and, ultimately, undermined his eviction action.
The decision reinforces the wisdom of obtaining experienced counsel to guide landlords through the sequence, timing and procedure of the eviction process. While eviction actions take place in small claims court and may be handled pro se by the landlords themselves, the reasoning in Mercer exemplifies that the law is not always intuitive and landlords can cause themselves significant headaches when they “go it alone.”
If you are a commercial landlord in need of counsel with respect to a tenant dispute or commercial eviction, please contact KMK Attorneys Melinda Bialzik at mbialzik@kmksc.com or 414-962-5110, or Lance Duroni at lduroni@kmksc.com or 414-961-4857.