Covid Emergency Eviction Moratorium Punishes Landlord

Post 5428

In Koble Investments v. Elicia Marquardt v. James Miller, Intervenor-Appellant, Supreme Court, 420 Wis.2d 304, No. 2022AP182 (June 5, 2026.) (Reversing 412 Wis. 2d 1, 7 N.W.3d 915.) 2026 WI 19, 420 Wis.2d 308 Koble Investments served tenant Elicia Marquardt with an eviction notice for nonpayment of rent during Governor Tony Evers’s COVID-19 eviction moratorium.

Marquardt counterclaimed, alleging Koble violated the Wisconsin Consumer Act by attempting to collect a debt or enforce a right it knew or should have known did not exist. She also claimed the residential lease was void and unenforceable because it permitted termination for crime-related conduct but omitted statutory domestic abuse protections required by Wisconsin landlord-tenant law.

The circuit court dismissed Koble’s eviction claim and rejected Marquardt’s counterclaims. Her former attorney, James Miller, sought to intervene to recover statutory attorney fees. The court denied fee recovery but later allowed Miller to intervene solely to appeal the statutory-fee issues.

The court of appeals reversed, holding that the Wisconsin Consumer Act applied to the lease, that Koble violated the Act, and that Marquardt and Miller could recover damages, costs, and attorney fees.

The Supreme Court disagreed.

LAW

The principal statutes were the Wisconsin Consumer Act, which regulates debt-collection conduct arising from consumer credit transactions or other consumer transactions involving an agreement to defer payment which permits attorney-fee recovery when a customer prevails under the WCA; and Wis., which address prohibited residential lease provisions; which requires notice of domestic abuse protections; and which allows double damages and attorney fees for pecuniary loss caused by violations of certain consumer-protection orders.

DISCUSSION AND ANALYSIS

The Wisconsin Supreme Court held that Wis. Stat. § 427.104 does not apply to a residential lease under which rent is payable monthly because such a lease is not an “agreement to defer payment.” Rent under a typical residential lease accrues month by month; the tenant does not owe all future rent at the moment the lease is signed. Because future rent obligations do not yet exist, they cannot be deferred.

The court rejected the court of appeals’ creative view that a one-year lease payable in monthly installments resembles an installment contract.

The Supreme Court also reasoned that Wisconsin landlord-tenant statutes and regulations confirm this interpretation. Wisconsin law treats rent as maturing when due, limits prepaid rent, restricts acceleration of rent, and requires landlords to mitigate damages after default. These rules are inconsistent with treating a residential lease as a deferred-payment arrangement.

On the damages issue, the court did not decide whether the lease was void for omitting domestic abuse protections. Instead, it assumed for purposes of analysis that the lease might be void and held that Marquardt still failed to prove a recoverable pecuniary loss.

She received occupancy in exchange for rent, and there was no evidence she actually paid the claimed late fees or filing fee. Because she did not show a causal connection between the alleged statutory violation and any financial loss, neither she nor Miller could recover damages, costs, or attorney fees.

CONCLUSION

Because Koble served Marquardt with an eviction notice during the COVID-19 eviction moratorium, the court concluded Koble violated the Wisconsin statutes. The court also declared the lease void and unenforceable under Wisconsin statutes because Koble omitted the notice of domestic abuse protections. Accordingly, the court held that Wis. Stat. § 100.20(5) entitled Marquardt to recover double the damages caused by Koble’s violation of § 704.44(10) and § ATPC 134.08(10), and Attorney Miller could recover reasonable attorney fees and costs under § 100.20(5) and Wis. Stat. § 425.308(1). Id., ¶¶ 32, 50.

In Wisconsin, a landlord is entitled to recover rent as it matures, not before. Logically, an obligation that does not yet exist cannot be deferred.

The Supreme Court recognized that a tenant’s obligation to pay rent under a typical residential lease accrues on a monthly basis. Because a tenant is not obligated to pay — upfront — all rent that will become due during the entire lease term, the obligation to pay rent each month is best understood as “a contemporaneous exchange of consideration” — one month of rent for one more month of occupancy.

A residential lease is not an installment contract. The lease obligated Marquardt to pay rent only on a monthly basis, in exchange for which Marquardt received the exclusive right to occupy the property during the month for which she paid.

No court has applied the WCA to residential leases in the fifty-four years after its enactment despite residential leases being frequently litigated.

CONCLUSION

The decision of the court of appeals was reversed.

ZALMA OPINION

This interesting case is not an insurance case as is my usual but deserves to learn that signing a lease does not require payment of all rent that will become due during the entire lease term, the obligation to pay rent each month is best understood as “a contemporaneous exchange of consideration” — one month of rent for one more month of occupancy. Laws created by the Covid Pandemic did not change contract law.

(c) 2026 Barry Zalma & ClaimSchool, Inc.

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