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How To Legally Serve A 5-Day Notice To Pay Rent or Vacate

Posted by Tristan R. Pettit, Esq. in Evictions, Notices / Comments

There are basically 4 ways in which you can legally serve a tenant with a 5-Day Notice To Pay Rent or Vacate.  First, you can personally serve the tenant with the notice.  Second, you can serve them by what I refer to as a "substituted" service.  Third, you can "post and mail" the notice to the tenant.  Fourth, you can serve the tenant via certified or registered mail.

Landlords in Wisconsin are legally allowed to serve the notice to pay or quit on the tenant themselves.  This is very different from the service of the eviction lawsuit (summons and complaint) which Wisconsin law will not allow to be served by a landlord or his/her agent.

Set forth below the are the 4 service options (as I categorize them) and the pros and cons of each option.

1.     Personal Service:  This form of service occurs when the notice is physically handed to the tenant.  While this option sounds pretty simple it often ends up being more complicated.  It becomes complicated because many landlords believe that if they cannot serve the tenant personally after the first attempt that they are allowed to post the notice on the door and be done with it -- WRONG.  Wisconsin Statutes require that the Landlord use "reasonable diligence" before they can resort to service via "posting and mailing."  "Reasonable diligence" is not defined in the statutes.  As such, what constitutes "reasonable diligence" is decided by the court commissioner or judge that is hearing your case - and oftentimes the definition of "reasonable diligence" will change depending on which judge or commissioner you are before.

In Milwaukee County it has been unofficially declared that "reasonable diligence" means you must make at least 3 different attempts to personally serve the tenant and those 3 differernt attempts must occur on 3 different days and at 3 different times.  For example, if you tried to serve the notice on the tenant on Monday at 8 am and they were not home, you would then have to wait until Tuesday to make your 2nd attempt in the afternoon.  If you still couldn't personally serve the tenant on Tuesday then you would need to come back on Wednesday and to attempt to serve the tenant again but this time in the evening hours.  Three different days at three different times of day.  So if your tenant is home and answers the door then personal service is pretty easy.  However, if they are not home or are dodging service then you could waste 3-4 days before you can legally "post and mail" the notice.  This is an unecessary delay. 

Another drawback to personal service is the fact that you may end up face to face with your tenant.  If there is some animosity between you and the tenant (as there often is when the tenant realizes that you will be evicting them if they don't pay rent) personal sevice of the notice could result in a personal confrontation.

2.     Substituted Service:  The second option is what I refer to as "substituted service" and essentially means you are serving someone else with the notice on behalf of the tenant.  I almost never recommend that a client opt for substituted service because of all of the potential problems.  Under section 704.21 of the Wisconsin Statutes you can serve a tenant by substituted service by serving a "competent family member who is at least 14 years old and who has been informed of the contents of the notice" or by "leaving a copy of the notice with a person apparently in charge, or occupying, the premises and mailing a copy to the tenant's last known address."

There are many potential pitfalls with substituted service.  First, you will need to inquire as to the age of the person you are giving the notice to to insure that they are at least 14 years old.  Second, you need to tell them what the notice is and what it means.  I have been involved in a case in which the landlord served the tenant's son with the notice  knowing that he was 16 years old.  However when the case went to court the tenant raised as a defense the fact that her son was mentally retarded and only functioned at a third grade level and forgot to give her the notice.  Rather right or wrong, the eviction lawsuit was dismissed for improper service.

Under the second option for substituted service, the landlord must leave a copy of the notice with a person "apparently in charge of the premises, or occupying the premises" and also mail the notice.  I have seen many landlords forget to mail the notice under this option and as a result the service was declared improper and the eviction lawsuit dismissed.  I have also heard of a situation in which the landlord served the notice on a gentleman (who was not a tenant but based on only being clothed in only boxer shorts he certainly appeared to be "apparently in charge or occupying the premises."), only to find out at the intial appearance in court that the gentleman  was someone that the tenant "picked up" at a bar the night before and failede to notify the tenant that he was given the notice but rather threw it in the garbage.  I know, I know, you are saying regardless of the "one night stand" throwing th enotice away, it still was a proper service as the landlord mailed the notice to the tenant as well, which he did.  I would agree with you 100% but I was told that was not what the court commissioner concluded.  Instead the court commissioner stated that becasue of the fact that the "one night stand" threw the notice in the garbage, the tenant didn't have proper notice of her ability to cure the breach by paying the past due rent to the landlord within 5 days, and as such the notice was improper.

Do you still think that serving a notice on a tenant is easy?

3.     Post and Mail:  As mentioned previously, if after using "reasonable diligence" and trying to serve the tenant by the above methods you are unable to personally serve or serve the tenant by substituted service, then -- and only then -- are you able to "post and mail."  To "post" means to place a copy of the notice in a conspicuous location on the property.  Oftentimes this is performed by tacking the notice to the tenant's door or sliding the notice under the door.  The landlord must also mail the notice to the tenant.  Problems arise if the lanldord fails to mail the notice or does not mail the notice on the same day as s/he posts the notice.  If the landlord mails the notice the day after the posting then the date of service will be on the date that it was mailed - not the date that it was posted. 

Sec. 704.19(7)(b) of the Wisconsin Statutes states that when "posting and mailing" or "leaving a copy of the notice with a person apparently in charge of  or occupying the premises," the notice is deemed to have been given on the day of service OR the date of mailing - whichever is later.  I have seen numerous cases where the landlord failed to mail the notice on the same day that it was posted and therefore it was determined that the eviction lawsuit was prematurely filed.

4.     Certified or Registered Mail:  Personally, I feel this is the best way to serve a tenant a 5-Day notice.  You are not required to attempt to personally serve a tenant with the notice before serving via certified or registered mail so you can disregard "reasonable diligence."  Nor must you attempt to obtain substituted service on the tenant before you can choose to serve via certified/registered mail.  Certified and registered mail also does NOT need to be picked up by the tenant in order for the service to be proper.  The law merely requires that the notice be mailed via certified or registered mail for it so be legally served.  By using certified or regular mail you also eliminate any possible confrontation with the tenant.  You eliminate the need to attempt to personally serve the tenant 3 different times on 3 different days at 3 different times of day.  You also eliminate all of the potential pitfalls with substituted service.

Serving a notice on a tenant via certified/registered mail is not without complications however.  When serving a tenant with a notice via certified/registered mail you must remember to add an additional 2 days for mailing on top of the notice period per section 704.19(7)(c), Wis. Stats.  So, in effect the 5-Day notice becomes a 7-day notice.  This means that the landord must insure that he does not file the eviction lawsuit (assuming the tenant does not cure the breach by paying the past due rent within the cure period) until at leasr 7 days after mailing the notice via certified or registered mail.  Another negative of certified or regestered mail is the cost.  If you own or manage many properties and send out a lot of 5-Day notices each month then the cost of certified/registered mail may be prohibitive.

Please be aware that if you own or manage subsidized housing that there are special service requirements for the 5-Day notice that may apply depending on the type of subsidy that is involved.

Tristan is a shareholder with the law firm of Petrie+Pettit and focuses his practice in the area of landlord-tenant law representing landlords and property management companies throughout Wisconsin.

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