Wisconsin Tenant Answer to Eviction Complaint (Small Claims)

WISCONSIN TENANT'S ANSWER TO EVICTION COMPLAINT, AFFIRMATIVE DEFENSES, AND COUNTERCLAIMS

TABLE OF CONTENTS

1. Caption
2. General Denial and Specific Admissions
3. Affirmative Defenses
4. Federal Statutory Defenses (CARES Act, VAWA, SCRA, FHA)
5. Counterclaims
6. Demand for Jury Trial
7. Prayer for Relief
8. Verification
9. Signature
10. Certificate of Service
11. Wisconsin Practice Notes for Tenants
12. Free or Reduced-Cost Legal Help
13. Sources and References

1. CAPTION

STATE OF WISCONSIN

CIRCUIT COURT — [COUNTY] COUNTY

SMALL CLAIMS DIVISION

Case No. [______________________]

Case Code: 31001 (Eviction)

TENANT'S ANSWER TO EVICTION COMPLAINT, AFFIRMATIVE DEFENSES, AND COUNTERCLAIMS

Defendant, by [counsel / pro se], answers the Eviction Complaint as follows:

2. GENERAL DENIAL AND SPECIFIC ADMISSIONS

2.1. General Denial. Defendant DENIES each and every allegation of the Complaint not specifically admitted herein.

2.2. Specific Admissions.

a. Defendant ADMITS that Defendant occupies the Premises located at [ADDRESS].

b. Defendant ADMITS that Defendant entered into a rental agreement with Plaintiff. [Specify agreement type, date.]

c. Defendant [ADMITS / DENIES] the form and amount of rent stated in the Complaint.

d. Defendant [ADMITS / DENIES] receipt of a termination notice from Plaintiff. [If admitted: Defendant disputes the legal sufficiency of the notice as set forth in the Affirmative Defenses below.]

e. Defendant [ADMITS / DENIES] the existence or amount of any past-due rent.

2.3. Specific Denials.

a. Defendant DENIES that Plaintiff is entitled to immediate possession of the Premises for the reasons set forth below.

b. Defendant DENIES that Defendant is in material breach of the Lease.

c. Defendant DENIES the legal sufficiency of the predicate notice attached to the Complaint.

d. Defendant DENIES any conduct described in the Complaint as a basis for "imminent threat" or unconditional termination under Wis. Stat. § 704.17(3m), to the extent so pleaded.

3. AFFIRMATIVE DEFENSES

First Defense — Defective Notice (Wis. Stat. § 704.17 / § 704.21)

3.1. The notice attached to the Complaint as Exhibit 2 is legally insufficient because:

• ☐ The notice period stated is shorter than required for the tenancy type.
• ☐ The notice fails to identify the specific lease provision allegedly breached.
• ☐ The notice misstates the amount of rent due, and Defendant tendered the undisputed amount within the cure period.
• ☐ The notice was served improperly under Wis. Stat. § 704.21.
• ☐ The 14-day unconditional notice was served without a predicate 5-day notice within the prior 12 months.
• ☐ The 5-day imminent-threat notice fails to plead specific conduct sufficient under Wis. Stat. § 704.17(3m).
• ☐ The notice does not terminate at the end of a rental period as required for periodic tenancies under Wis. Stat. § 704.19(3).
• ☐ Other: [SPECIFY]

3.2. A defective § 704.17 notice requires dismissal of this action without prejudice.

Second Defense — Implied Warranty of Habitability (Wis. Stat. § 704.07)

3.3. Plaintiff has materially breached the implied warranty of habitability codified in Wis. Stat. § 704.07 by failing to maintain the Premises in compliance with applicable housing codes and Plaintiff's express statutory duties, including:

a. [SPECIFY DEFECT — e.g., persistent water leaks; nonfunctioning heat; pest infestation; mold; broken windows; nonworking plumbing; failure to provide running hot water; etc.]

b. [SPECIFY DEFECT]

3.4. Defendant gave Plaintiff written notice of these defects on [__/__/____] (Exhibit A) and Plaintiff failed to repair within a reasonable time.

3.5. Pursuant to Wis. Stat. § 704.07(4), Defendant is entitled to abatement of rent to the extent Defendant has been deprived of the full normal use of the Premises. The abated portion of rent should not be deemed unpaid for purposes of nonpayment eviction.

Third Defense — Cure / Tender (Wis. Stat. § 704.17(3))

3.6. Defendant timely cured the alleged default by [paying full past-due rent / curing the breach] on [__/__/____], prior to expiration of the cure period. Pursuant to § 704.17(3), the notice was thereby revoked and the tenancy reinstated.

3.7. Plaintiff's acceptance of payment [on __/__/____] waived any prior breach.

Fourth Defense — Retaliatory Eviction (Wis. Stat. § 704.45)

3.8. The eviction is unlawful retaliation for Defendant's good-faith exercise of one or more legally protected activities, specifically:

• ☐ Defendant complained to Plaintiff in good faith about a defect in the Premises on [__/__/____].
• ☐ Defendant complained to a public officer or housing-code enforcement agency on [__/__/____].
• ☐ Defendant joined or formed a tenants' association.
• ☐ Defendant withheld rent in good faith pursuant to § 704.07(4).
• ☐ Defendant exercised a right under federal or state fair housing law.
• ☐ Defendant filed a complaint regarding a security deposit under § 704.28 / ATCP 134.06.

3.9. The proximity in time between Defendant's protected activity and Plaintiff's termination notice demonstrates a retaliatory motive. Wis. Stat. § 704.45 prohibits this action.

Fifth Defense — Discrimination (Wis. Stat. § 106.50; 42 U.S.C. § 3604)

3.10. The eviction is based, in whole or in part, on Defendant's protected characteristic(s) under the Wisconsin Open Housing Act and the federal Fair Housing Act, specifically:

• ☐ Race / Color / National Origin / Ancestry
• ☐ Religion
• ☐ Sex / Gender Identity / Sexual Orientation
• ☐ Disability (including reasonable accommodation for service or emotional support animal under § 106.50(2r))
• ☐ Familial Status (children in household)
• ☐ Age (18 and older)
• ☐ Marital Status
• ☐ Lawful Source of Income (Section 8 / Housing Choice Voucher under § 106.50(1m)(nm))
• ☐ Status as a Victim of Domestic Abuse, Sexual Assault, or Stalking

Sixth Defense — Self-Help / Constructive Eviction (Wis. Stat. § 704.95; ATCP 134.09(7); § 704.44(9))

3.11. Plaintiff (or Plaintiff's agent) engaged in unlawful self-help measures including [lockout / utility shutoff / removal of belongings / threats / harassment], on [__/__/____], in violation of Wis. Stat. § 704.95, ATCP 134.09(7), and the common-law no-self-help rule. These violations bar the eviction and entitle Defendant to remedies under § 100.20(5) (double damages, costs, attorney fees).

Seventh Defense — Waiver / Estoppel / Unclean Hands

3.12. Plaintiff accepted full rent for the period at issue or otherwise engaged in conduct inconsistent with an intent to terminate, thereby waiving any right to terminate.

3.13. Plaintiff's own breaches of the Lease and statutory duties bar equitable relief on grounds of unclean hands.

Eighth Defense — Lease Provisions Void as Against Wisconsin Law

3.14. The Lease contains provisions void under Wis. Stat. § 704.44 (e.g., waiver of statutory rights; landlord-self-help; waiver of jury trial in residential lease in violation of public policy; etc.). A material § 704.44 violation renders the entire Lease void at Defendant's election and bars enforcement, including any nonpayment claim premised on the void Lease. 2017 Wis. Act 317 retained the void-lease consequence.

Ninth Defense — Lead-Paint / Pre-Rental Disclosure Failure

3.15. The Premises was constructed before 1978 and Plaintiff failed to provide the EPA Lead Hazard Information Pamphlet and Lead Disclosure Form required by 42 U.S.C. § 4852d and 24 C.F.R. § 35.92, as well as any disclosures required by Wis. Stat. § 254.176.

3.16. Plaintiff failed to make pre-rental disclosures required by ATCP 134.04 (identification of owner and authorized agents; building code violations; uninhabitable conditions known to landlord).

4. FEDERAL STATUTORY DEFENSES (CARES ACT, VAWA, SCRA, FHA)

Tenth Defense — CARES Act 30-Day Notice (15 U.S.C. § 9058)

4.1. The Premises is a "covered dwelling" under 15 U.S.C. § 9058 because [basis: federally subsidized housing / Section 8 / federally backed mortgage loan]. Plaintiff failed to serve the required 30-day pre-eviction notice. The action is therefore barred by federal law.

Eleventh Defense — VAWA (34 U.S.C. § 12491)

4.2. Defendant is a survivor of domestic violence, dating violence, sexual assault, or stalking. The eviction is based on incidents that fall under VAWA's protections in federally subsidized housing. Plaintiff failed to comply with the VAWA notice and certification process and improperly used VAWA-protected incidents as a basis for termination. The action is barred by federal law.

Twelfth Defense — Servicemembers Civil Relief Act (50 U.S.C. § 3951)

4.3. Defendant [or Defendant's spouse] is on active military duty. Pursuant to 50 U.S.C. § 3951, Defendant is entitled to a stay of eviction proceedings of not less than 90 days upon Defendant's application. Defendant requests the protections afforded by SCRA.

Thirteenth Defense — Federal Fair Housing Act (42 U.S.C. § 3604)

4.4. The eviction is unlawful under the federal Fair Housing Act for the reasons stated in the Fifth Defense above.

5. COUNTERCLAIMS

Counterclaim One — Security Deposit Double Damages (Wis. Stat. § 704.28; ATCP 134.06; § 100.20(5))

5.1. Plaintiff failed to return Defendant's security deposit of $[______] within 21 days after surrender, or made improper deductions for ordinary wear and tear (routine cleaning, routine painting, etc.) in violation of Wis. Stat. § 704.28 and ATCP 134.06.

5.2. Pursuant to Wis. Stat. § 100.20(5), Defendant is entitled to recover DOUBLE the wrongfully withheld amount (i.e., $[______]) plus costs and reasonable attorney fees.

Counterclaim Two — Habitability Damages (Wis. Stat. § 704.07)

5.3. By reason of Plaintiff's breach of the implied warranty of habitability, Defendant has suffered damages including rent overpayment, costs of self-help repairs, alternative housing costs, property damage, and incidental damages in the amount of $[______].

Counterclaim Three — Self-Help Damages (Wis. Stat. § 704.95; ATCP 134.09(7); § 100.20(5))

5.4. Plaintiff's unlawful self-help measures (Sixth Defense) caused Defendant damages of $[______], doubled under § 100.20(5), plus costs and reasonable attorney fees.

Counterclaim Four — Retaliation Damages

5.5. As a result of Plaintiff's retaliatory conduct, Defendant has suffered actual and consequential damages of $[______].

Counterclaim Five — Discrimination

5.6. Plaintiff's discriminatory conduct entitles Defendant to compensatory damages, civil penalties, and other relief under Wis. Stat. § 106.50 and 42 U.S.C. § 3613.

6. DEMAND FOR JURY TRIAL

6.1. Pursuant to Wis. Stat. § 799.21 and Article I, § 5 of the Wisconsin Constitution, Defendant DEMANDS A JURY TRIAL on all issues so triable as a matter of right.

6.2. The required jury fee of $144.00 is tendered with this Answer [or will be tendered within the time required by the court].

7. PRAYER FOR RELIEF

WHEREFORE, Defendant respectfully requests that this Court:

• A. Dismiss the Eviction Complaint with prejudice;
• B. Award Defendant possession of the Premises;
• C. Award Defendant double damages on the security-deposit counterclaim (Counterclaim One);
• D. Award Defendant compensatory and statutory damages on Counterclaims Two through Five;
• E. Award Defendant costs and reasonable attorney fees under Wis. Stat. § 100.20(5), § 799.25, ATCP 134.06(4), and 42 U.S.C. § 3613;
• F. Grant Defendant pre-judgment and post-judgment interest at the legal rate;
• G. Grant Defendant a jury trial on all issues so triable;
• H. Such other and further relief as the Court deems just and equitable.

8. VERIFICATION

STATE OF WISCONSIN

COUNTY OF [COUNTY]

I, [DEFENDANT NAME], being first duly sworn, depose and say:

8.1. I am the Defendant in this action.

8.2. I have read the foregoing Answer, Affirmative Defenses, and Counterclaims, and I know the contents thereof.

8.3. The allegations are true to my own knowledge except as to those matters stated upon information and belief, and as to those I believe them to be true.

[________________________________]

[DEFENDANT NAME]

Subscribed and sworn to before me this [____] day of [_______________], 20[____].

[________________________________]

Notary Public, State of Wisconsin

(My Commission Expires: [_______________])

9. SIGNATURE

Date: [__/__/____]

Respectfully submitted,

[LAW FIRM NAME / PRO SE]

By: [________________________________]

[ATTORNEY NAME], Wis. State Bar No. [####]

(or Pro Se: [DEFENDANT NAME])

Attorney for Defendant [/ Pro Se Defendant]

[STREET ADDRESS]

[CITY, WI ZIP]

Telephone: [NUMBER]

Email: [EMAIL]

10. CERTIFICATE OF SERVICE

I hereby certify that on [__/__/____], the foregoing TENANT'S ANSWER was served upon Plaintiff's counsel by:

• ☐ Hand delivery
• ☐ U.S. Mail, first-class, postage prepaid
• ☐ Email (where authorized)
• ☐ Filing and service through Wisconsin eFiling

Plaintiff's counsel address: [ADDRESS]

[________________________________]

[SIGNER NAME]

11. WISCONSIN PRACTICE NOTES FOR TENANTS

• Initial-appearance survival. To avoid default judgment, you MUST appear in person or through counsel at the date and time on the SC-500 cover. If you fail to appear, judgment will be entered against you and a writ of restitution will issue. § 799.22.
• Contest the case ON THE RECORD. Stand up and tell the court: "I am here to contest. I have filed an Answer with valid legal grounds." Hand a file-stamped copy to the court and to opposing counsel. Bare denial is not enough under 2017 Wis. Act 317 amendments to § 799.206.
• Germane defenses ONLY at initial appearance. Wisconsin courts hear only defenses germane to right of possession at the initial appearance. Habitability, retaliation, discrimination, defective notice, cure/tender, self-help, federal-law preemption — these are germane. Pure money claims (security deposit, broken refrigerator damages) are not initial-appearance defenses but may be pleaded as counterclaims for trial. § 799.40(3).
• Jury trial preserves leverage. § 799.21 preserves a jury trial right with payment of $144. A jury demand often delays scheduling and creates settlement leverage. If you cannot afford the fee, file CV-410A waiver petition.
• § 704.07 abatement. The implied warranty of habitability is codified. If the unit has serious defects (no heat, no water, infestation, mold, dangerous electrical), you may abate rent in proportion to deprivation of use. Document everything: photos, written notices to landlord, code-enforcement complaints.
• Security deposit double damages. § 704.28 + ATCP 134.06 require return of deposit + itemized statement within 21 days of surrender. A landlord who fails to comply, or who improperly deducts for routine wear and tear (carpet cleaning, painting), is liable for DOUBLE the wrongfully withheld amount + costs + reasonable attorney fees. § 100.20(5).
• Self-help is a goldmine. If the landlord locked you out, shut off utilities, or removed your possessions, you have a powerful counterclaim under § 704.95 / ATCP 134.09(7) / § 704.44(9), with double damages under § 100.20(5).
• Retaliation timing. Wis. Stat. § 704.45 prohibits retaliation. Although Wisconsin lacks an explicit statutory presumption period, Wisconsin courts and the Tenant Resource Center treat actions taken within roughly 6 months of protected activity as suspicious. Document the timeline.
• Discrimination. § 106.50's protected classes go BEYOND federal law: lawful source of income (vouchers), age (18+), and victim status are uniquely Wisconsin protections. A discrimination defense + counterclaim can entirely transform the case.
• 2017 Act 317 lease-void rule. A lease that contains a § 704.44 prohibited term is VOID at the tenant's election. Common void provisions: waiver of statutory rights; pre-authorization of self-help; waiver of jury trial; mandatory landlord attorney fees without reciprocal tenant fees. Read the lease for these traps.
• Local preemption. 2017 Act 317 preempted significant Madison and Milwaukee tenant-protection ordinances. Some Milwaukee Tenant Bill of Rights provisions and Dane County Fair Housing protections survived. Confirm current local protections with a tenant attorney.
• WCCA visibility. Eviction filings appear on the public Wisconsin Circuit Court Access (WCCA) website. 2017 Act 317 limited visibility of dismissed cases but did not eliminate it. Negotiate dismissal carefully and request a court order sealing or removing the WCCA entry where available.
• Settlement options. A "stipulated dismissal upon vacate by [date]" preserves your housing record. A "stipulated judgment with stay of writ" trades short-term housing for a long-term WCCA stain. Talk to a tenant attorney before signing.

12. FREE OR REDUCED-COST LEGAL HELP

13. SOURCES AND REFERENCES

• Wis. Stat. ch. 799 (Small Claims Procedure) — https://docs.legis.wisconsin.gov/statutes/statutes/799
• Wis. Stat. § 799.40 (Eviction actions) — https://docs.legis.wisconsin.gov/statutes/statutes/799/40
• Wis. Stat. § 799.41 (Initial appearance / hearing)
• Wis. Stat. § 799.20 (Form of pleadings — answer)
• Wis. Stat. § 799.21 (Jury trial; jury fee)
• Wis. Stat. § 799.206 (Default; contested matters)
• Wis. Stat. ch. 704 (Landlord and Tenant) — https://docs.legis.wisconsin.gov/statutes/statutes/704
• Wis. Stat. § 704.07 (Implied warranty of habitability)
• Wis. Stat. § 704.17 (Termination notice)
• Wis. Stat. § 704.28 (Security deposit)
• Wis. Stat. § 704.44 (Prohibited rental agreement provisions)
• Wis. Stat. § 704.45 (Retaliation prohibited)
• Wis. Stat. § 704.95 (DATCP rental practices)
• Wis. Stat. § 100.20(5) (Unfair trade practice double damages)
• Wis. Stat. § 106.50 (Wisconsin Open Housing Act)
• Wis. Admin. Code ATCP 134 — https://docs.legis.wisconsin.gov/code/admin_code/atcp/090/134
• ATCP 134.04 (Pre-rental disclosures)
• ATCP 134.06 (Security deposits)
• ATCP 134.09 (Prohibited practices, including retaliation and self-help)
• 2017 Wisconsin Act 317 — https://docs.legis.wisconsin.gov/2017/related/lcactmemo/act317
• Wisconsin Court System — Form SC-500 — https://www.wicourts.gov/forms1/circuit/ccform.jsp?FormName=SC-500
• 15 U.S.C. § 9058 (CARES Act 30-day notice)
• 42 U.S.C. § 3604 (federal Fair Housing Act)
• 34 U.S.C. § 12491 (VAWA — federally subsidized housing)
• 50 U.S.C. § 3951 (SCRA stay of eviction)
• 24 C.F.R. § 35.92 (federal lead-paint disclosure)
• Wisconsin Legislative Council — Eviction of a Residential Tenant — https://docs.legis.wisconsin.gov/misc/lc/information_memos/2024/im_2024_12

Disclaimer: This template is provided for informational purposes only and does not constitute legal advice. An attorney licensed in Wisconsin must review and customize this document before filing. Tenants facing eviction should seek legal counsel immediately. Free or reduced-cost help is available — see Section 12. Verify current statutory text and local court rules before filing.