Wisconsin Supreme Court Hands Landlords a Win
in Koble Investments v. Marquardt
“The law does not allow a tenant to occupy premises rent-free simply because
the lease is void and unenforceable.”
(Justice Rebecca Bradley, writing for the majority in
Koble Investments v. Marquardt, 2026 WI 19, ¶ 28.)
On Friday, June 5, 2026, the Wisconsin Supreme Court (hereinafter “Court”) issued its opinion in the case of Koble Investments v. Elicia Marquardt, et al.[i]. The case had been pending before the Court since May 2024, after the District III Court of Appeals delivered a blow to Wisconsin landlords with its April 2024 published decision[ii]. What happened in the case, and what does it mean for landlords and tenants now?
Background: Circuit Court Case
I. Procedural History
In May 2020, Koble Investments (“Koble”), a residential landlord, issued a 5-day notice to pay rent or vacate to one of its tenants, Elicia Marquardt (“Marquardt”). When Marquardt failed to pay or vacate, Koble filed an eviction action, pro se, in Marathon County Circuit Court. At the time the 5-day notice was issued, the COVID-19 pandemic had begun, and Governor Tony Evers had issued multiple statewide emergency orders, including Emergency Order #15: Temporary Ban on Evictions and Foreclosures, issued on March 27, 2020. The temporary ban was effectively a 60-day moratorium on eviction actions, and prohibited landlords from serving any notice terminating a tenancy for failure to pay rent while the ban was in place (hereinafter the “Eviction Moratorium”). Because the 5-day notice offered the option to pay or vacate, consistent with what is required by state landlord-tenant law, it was also a notice terminating tenancy.
Marquardt, through her counsel, Attorney James D. Miller (“Miller”), filed an answer contesting the eviction, along with several counterclaims, some of which were dismissed/not pursued at the circuit court level. The two remaining counterclaims alleged a violation of the Wisconsin Consumer Act (“WCA”) and that the lease was void pursuant to the Wisconsin Statutes.
The first counterclaim (the “WCA Claim”) alleged that, by serving the 5-day notice in violation of the Eviction Moratorium, Koble was attempting to “collect a debt arising from a consumer credit transaction or other consumer transaction…where there is an agreement to defer payment” “with knowledge or reason to know that the right [to collect the debt] does not exist”, contrary to the WCA.[iii] If successful in proving a violation, Marquardt would be entitled to recover her attorney fees.
The second counterclaim alleged that Marquardt’s written lease agreement with Koble was void because it allowed eviction for criminal activity without containing required language advising potential domestic violence victims of rights they may have, pursuant to a provision of the Wisconsin statutes governing the landlord-tenant relationship and its administrative code counterpart[iv] (the “ATCP Claim”). If successful on the ATCP Claim, Marquardt would be entitled to recover double her pecuniary loss plus attorney fees, as authorized under Wis. Stat. § 100.20.
Early in the circuit court proceedings, Koble moved to dismiss the eviction, admitting that giving the eviction notice violated the Eviction Moratorium. The court granted the dismissal, but Marquardt’s counterclaims remained. The dismissal of the eviction action did not render either counterclaim moot; the counterclaims were based on Koble’s act of serving the 5-day notice, prior to the filing of the eviction action. Miller also filed a request for attorney fees based upon the fee-shifting nature of the counterclaims.
At some point, Miller withdrew as Marquardt’s counsel due to lack of communication between himself Marquardt and Marquardt’s lack of appearance in the proceedings. Miller sought to intervene to recover attorney fees on behalf of himself. The circuit court concluded that: (a) the WCA does not apply to residential leases; (b) the lease was not void or unenforceable under section 704.44 or ATCP 134.08, and (c) that because Marquardt did not suffer a pecuniary loss, Miller had no claim for attorney fees. However, the circuit court later allowed Miller to intervene file an appeal related to his pursuit of attorney fees.
II. Statutory and Regulatory Framework
The issues decided by all three levels of court were issues of law. Essentially, the material facts were not in dispute: Marquardt had a written lease for a term of one year with Koble; when Marquardt failed to pay rent on time, Koble served her with a 5-day notice, in violation of the Eviction Moratorium; and, Koble subsequently filed an eviction action when Marquardt neither paid nor vacated.
The law at issue in the WCA Claim was one specific section of the WCA (which, in total, is comprised of 8 chapters of statutes). The relevant section provides, in pertinent part, as follows:
427.104 Prohibited practices.
(1) In attempting to collect an alleged debt arising from a consumer credit transaction or other consumer transaction, including a transaction primarily for an agricultural purpose, where there is an agreement to defer payment, a debt collector may not:
…
(j) Claim, or attempt or threaten to enforce a right with knowledge or reason to know that the right does not exist.[v]
The courts’ analysis of the WCA Claim required review of certain definitions in the WCA to determine its applicability, before determining whether section 427.104 was violated. Specifically, the courts needed to review the definitions of “Consumer transaction” (a transaction in which one or more of the parties is a customer for purposes of that transaction) and “Customer” (person other than an organization who seeks or acquires real or personal property, services, money or credit for personal, family or household purposes or, for purposes of ch. 427 only, for agricultural purposes).[vi]
On the ATCP Claim, a statutory section and an administrative code section that contain mirrored language were at issue. They provide, in pertinent part, as follows:
704.44 Residential rental agreement that contains certain provisions is void. Notwithstanding s. 704.02, a residential rental agreement is void and unenforceable if it does any of the following:
…
(10) Allows the landlord to terminate the tenancy of a tenant for a crime committed in relation to the rental property and the rental agreement does not include the notice required under s. 704.14.[vii]
Section 704.14, referenced in section 704.44(10), contains precise language, which must be repeated verbatim in a rental agreement, providing tenants with notice of certain domestic abuse protections they have – in short, that the tenancy of tenants who are victims of domestic abuse cannot be terminated for conduct related to the domestic abuse.
It should be noted that it is not relevant whether the problematic lease provision is the basis for the termination of tenancy or eviction, or even whether landlord attempts to enforce that provision at all. The prohibited act is the inclusion of the clause in the lease.[viii] Even if a landlord later recognizes that its lease contains a prohibited provision, the landlord’s decision to ignore that provision will not save the lease; nothing short of implementing a new lease that omits the problematic provision can substantially reduce the landlord’s risk in this regard.
The corresponding provision in the administrative code contains an introductory note at the beginning of the chapter that provides the governing language regarding the availability of damages and attorney fees for a violation of the chapter:
Note: This chapter is adopted under authority of s. 100.20 (2), Stats., and is administered by the Wisconsin department of agriculture, trade and consumer protection. Violations of this chapter may be prosecuted under s. 100.20 (6), 100.26 (3) or (6), Stats. A person who suffers a monetary loss because of a violation of this chapter may sue the violator directly under s. 100.20 (5), Stats., and may recover twice the amount of the loss, together with costs and reasonable attorneys’ fees.[ix]
Court of Appeals Decision
The Court of Appeals reversed the circuit court, and Miller prevailed on all accounts. Remember that the tenant, Marquardt, had not been participating, and Miller appealed on his own on the issue of attorney fees. In order to decide whether he was entitled to attorney fees, the Court of Appeals needed to decide whether the circuit court’s determinations on the merits of Marquardt’s WCA Claim and ATCP Claim were appropriate.
On the WCA Claim, the Court of Appeals held that a residential lease is a “consumer transaction” falling under the auspices of the WCA. The Court of Appeals further reasoned that, because rent was to be paid monthly pursuant to the 12-month lease Marquardt had with Koble, the lease was an “agreement to defer payment.” Therefore, the Court of Appeals construed Koble’s termination of tenancy via the 5-day notice and subsequent attempt to evict Marquardt during the Eviction Moratorium as a violation of the WCA’s prohibition on collecting with knowledge that Koble had no right to collect it.[x]
On the ATCP Claim, the Court of Appeals determined that Koble’s lease agreement with Marquardt was void for violating sections 704.44(10) and ATCP 134.08(10), entitling Marquardt to recover double her damages under ATCP 134. Specifically, the Court of Appeals found that the circuit court record supported a finding that the rental agreement violated Wis. Stat. § 704.44(10). It contained a provision requiring that “[n]either party may…make [or] knowingly permit use of the premises for an unlawful purpose,” with termination of the agreement as a consequence, but did not contain any mention of domestic abuse protections.[xi]
The Court of Appeals then turned to the issues of damages and attorney fees, based on the ATCP Claim. Despite discussing void leases, Chapter 704 does not explicitly provide an explanation for the effect of a voided lease on damages. In his briefing to the Court of Appeals, Miller looked to the WCA as informative based on its similar consumer protection goals. He offered that the WCA provides that in a void transaction, customers are entitled to retain the goods received while recovering any sums paid pursuant to the transaction.
Koble’s appellate brief failed to argue this point, so the Court of Appeals accepted Miller’s reasoning, stating:
Notably, Koble does not respond to Attorney Miller’s argument that, as a result of Koble’s violation of WIS. STAT. § 704.44(10) and WIS. ADMIN. CODE § ATCP 134.08(10), Marquardt is entitled to recover all of the payments that she made under the void and unenforceable lease, without any offset for the value of the benefit that she received from living in the rental premises. In particular, Koble fails to develop an argument that the claimed pecuniary loss was not caused by Koble’s violation of § 704.44(10) and § ATCP 134.08(10).[xii]
Double damages and attorney fees are triggered by § 100.20(5) when a person has suffered pecuniary loss “because of” a violation of ATCP 134. The Court of Appeals made no finding that the tenant suffered a pecuniary loss because of a violation of ATCP 134. It merely found in the tenant’s attorney’s favor because the landlord conceded this argument by failing to address it.
The Court of Appeals remanded the case to the circuit court for a determination on the amount of damages and attorney fees. Koble then, with new counsel, petitioned the Wisconsin Supreme Court for review of the Court of Appeals’ decision.
Supreme Court Decision
The Court reversed on all accounts, holding: (1) section 427.104 of the WCA does not apply to residential leases under which rent is paid monthly; (2) even if Marquardt’s lease were void under section 704.44 and ATCP 134.08, she suffered no damages; and (3) Miller was not entitled to attorney fees.
I. The Wisconsin Consumer Act Claim
The Court held that section 427.104 does not govern a residential lease under which rent is payable on a monthly basis because it is not an agreement to defer payment.[xiii] For the WCA to govern a resident lease, all of the following must be present, the Court said: (a) Marquardt must be a “customer” as defined in 427.01(17); (b) residential lease must constitutes a “consumer transaction” as defined in 421.301(13); and (c) a residential lease must constitute an “agreement to defer payment” (which is not defined in the WCA).
The Court’s opinion focused on whether a residential lease under which rent is payable on a monthly basis is an agreement to defer payment. In doing so, the Court looked to the dictionary: “To defer means to delay or to put off a matter or a person to be dealt with deliberately for a future time” and “payment is the discharge of a debt or an obligation.” (citing Webster’s Third New International Dictionary 591 and 1659 (1986)). Therefore, the Court reasoned, “under the plain meaning of 427.104(1), an agreement to ‘defer payment’ is an agreement to delay or to put off the discharge of a debt or an obligation.”[xiv]
The Court noted that the Court of Appeals had construed a 12-month lease to impart a debt equal to 12 months’ rent, with Koble permitting Marquardt to pay one-twelfth of the amount each month. “That is not how residential leases work,” the Court’s opinion stated; “[a]n obligation that does not yet exist cannot be deferred.”[xv] The Court further explained that a tenant’s obligation to pay rent under a typical residential lease accrues monthly; the tenant does not owe all future monthly rent payments upon execution of the lease. In so characterizing the lease, the Court relied on earlier court of appeals decision, finding that a landlord is entitled to recover rent as it matures, not before.[xvi]
Justice Rebecca Grassl Bradley, who authored the majority opinion, also wrote a concurring opinion, in which Justice Annette Kingsland Ziegler joined. In the concurrence, Justice Bradley thought the majority didn’t go far enough in holding that section 427.104 of the WCA did not apply to residential leases. Rather, Bradley feels the entire WCA does not apply to residential leases, because a tenant is not a customer for the purposes of the WCA, and that the Court should have so held. The majority opinion did not explicitly address whether a tenant is or can be a customer; thus, the question of whether the rest of the WCA applies or can apply to residential leases is now no more definitive than it was before the Koble decision. However, the majority opinion did emphasize the history of the enforcement and application of the WCA, quoting from an 1873 decision for the proposition that interpreting law in a manner that has never been the understanding or practice under it for more than fifty years is a strong signal the interpretation is wrong, and further noting that Miller did not identify a single case applying WCA to residential leases.[xvii] The Court’s decision in Koble is likely to support an argument that the WCA does not apply to residential leases, under any circumstance.
II. The Void Lease, ATCP Claim, & Attorney Fees
The Court stated it need not determine whether Marquardt’s lease with Koble was void pursuant to section 704.44, because it held that, even if there were a violation of 704.44 and the corresponding ATCP provision, Marquardt failed to show Koble’s violation caused her to suffer pecuniary loss. As such, neither Marquardt nor Miller were entitled to damages, fees, or costs.
In finding there was no pecuniary loss, the Court explained that Marquardt enjoyed the benefit of the bargain she struck with Koble: she paid rent to Koble in exchange for Koble giving her exclusive occupancy of the premises. Thus, the rent she paid was not damages she suffered. In so stating, the Court made a statement landlords and their attorneys have been screaming from the mountain tops for years: The law does not allow a tenant to occupy premises rent-free simply because the lease is void and unenforceable.[xviii] The Court of Appeals’ finding to the contrary, the Court noted, was based solely on Koble’s purported failure to respond to Miller’s argument on this issue, and was not supported by any analysis.
The Court also emphasized that, even if there are damages, there must be a causal connection between the violation and those damages: “A party asserting a pecuniary loss for the purposes of Wis. Stat. § 100.20(5) must show that there is a causal connection between a prohibited trade practice…and the damage incurred.”[xix] The Court went on to note that, even though this argument was not made, Marquardt could not reasonably argue the omission of the domestic abuse protections notice from the lease caused her to make rent payments.
Finally, the Court’s opinion clarified the answer to the question: if a residential lease is void, then what? Under Wisconsin law, the Court stated, a tenant occupying a premises under a void an unenforceable lease become a ‘periodic tenant’ under Wis. Stat. § 704.01(2) obligated to pay rent on whatever basis she had been paying rent under the lease.[xx]
Attorney Miller’s Intervention in the Case
Upon reading the procedural history, one might wonder: What?!? How did the appellate courts decide a litigant’s rights when her attorney had withdrawn from representation at the circuit court level, and the litigant did not herself participate in the appellate case? If you are thinking that, you are not alone. Justice Susan Crawford wrote a concurrence in which she questioned that very issue: how can the Court decide a landlord-tenant dispute with no tenant?
Crawford believes Miller lacked standing to appeal and that the decision of the Court of Appeals could have been reversed on that basis alone, without reaching the merits of the landlord-tenant issues presented by the case. Miller lacked standing, Crawford reasons, because Marquardt did not appeal the circuit court’s dismissal of her counterclaims, and Miller’s claim for fees rested upon the merits of Marquardt’s counterclaims.
Justice Crawford saw, as many onlookers within the legal community did, that this case seemed to have been propelled by Miller’s request for attorney fees, and not by the tenant herself, indicating that the case “went off the rails” early on in the proceedings.[xxi] She indicates she could find no case, in any jurisdiction, in which a court permitted an attorney to appeal a former client’s substantive claims, in hopes of ultimately obtaining a legal basis for the award of attorney’s fees. Crawford closed with a scathing characterization of Miller’s conduct: “Thus, in his zeal to win an order requiring Koble to pay his fees, Miller completely disregarded his client’s wishes” in violation of his professional responsibilities to his client pursuant to the ethics rules that govern attorneys admitted to practice before Wisconsin courts.[xxii]
What Now?
This case brings good news for landlords and tenants alike: the decision doesn’t suddenly render a bunch of leases void, invalidate a bunch of tenancies, or fundamentally change the way landlords and tenants should view their leases and their landlord-tenant relationship. The statutory provision prohibiting certain language in residential rental agreements has not changed, and those agreements can still be considered void if they violate the statute. The decision provides confirmation and clarity to what happens next: if a rental agreement is void, there is a periodic tenancy.
What is less clear and may have landlords, tenants, their attorneys, and circuit courts scrambling: what happens to all of the cases that have been filed in circuit courts, relying on the Court of Appeals decision in Koble? The answer is, of course, it depends. It depends on how the local court and judge prefer to handle, procedurally, the introduction of new law, mid-case. It depends on how many claims were brought in those cases and whether all the claims rely on the now-reversed Koble decision, or just one or some of the claims do. And it depends, in those cases with some Koble-backed claims and some other claims, on whether it makes economic sense for the tenant and their attorney to continue, if the remaining claims do not include a fee-shifting element.
As with almost any case, there are some unanswered questions. There are other questions that can be answered with the benefit of the Court’s decision, but that are too fact-dependent for a single answer. Landlords are well-advised to seek the advice of an attorney to determine whether, and how, this decision impacts their existing rental agreements, tenant relationships, or the way they do business.
To connect with an experienced landlord attorney who has followed this case and related issues closely, contact Kramer, Elkins & Watt, LLC at 608-709-7115. Attorneys Jessica M. Kramer and Joe Andreoni are ready to assist.
[i] Koble II, 2026 WI 19.
[ii] Koble I, 2024 WI App 26.
[iii] Wis. Stat. § 427.104(1)(j).
[iv] Wis. Stat. § 704.44(10); Wis. Admin. Code § ATCP 134.08(10). The Wisconsin Department of Agriculture, Trade & Consumer Protection enforces this regulation, and others, impacting the landlord-tenant relationship.
[v] Wis. Stat. § 427.104(1)(j).
[vi] Wis. Stat. § 421.301(13) and (17).
[vii] Wis. Stat. § 704.44(10); see also Wis. Admin. Code § ATCP 134.08(10).
[viii] Baierl v. McTaggart, 2001 WI 107, ¶22, 245 Wis. 2d 632, 629 N.W.2d 277.
[ix] Chapter ATCP 134, Wis. Admin. Code.
[x] Koble I, 2024 WI App 26, ¶ 28.
[xi] Id. at ¶¶ 35-36.
[xii] Id. at ¶¶ 49-50 (emphasis added).
[xiii] Koble II, 2026 WI 19, ¶4 (internal quotation marks omitted).
[xiv] Id. at ¶8.
[xv] Id. at ¶¶9-10.
[xvi] Id. at ¶10, citing Kersten v. H.C. Prange Co., 186 Wis. 2d 49, 65, 520 N.W.2d 99 (Ct. App 1994) (citing Schaaf v. Nortman, 19 Wis. 2d 540, 547, 120 N.W.2d 654 (1963)).
[xvii] Koble II, 2026 WI 19, ¶19-20, citing Scanlan v. Childs, 33 Wis. 663, 665-666 (1873).
[xviii] Koble II at ¶ 28.
[xix] Id. ¶29, citing Grand View Windows, Inc. v. Brandt, 2013 WI 95, ¶21, 349 Wis. 2d 759, 837 N.W.2d 611.
[xx] Koble II at ¶ 28.
[xxi] Id. at ¶42.
[xxii] Id. at ¶41, citing SCR 20:1.2(a), 1.4(a)(3).