My landlord refuses to return security deposit claiming that I broke the lease, when I subleased it and moved. Can he do that?

Just as a general point, I am Florida barred attorney. Your question is specific to Wisconsin law and only a Wisconsin barred lawyer can give you the nitty gritty on Wisconsin law. That being said, your situation is fairly common. The bad news is you probably don't have much recourse against the landlord without a big fight. Here is why.

There was no sublease, which would be between you and the the sub tenant. Instead, your lease was canceled and/or assigned by substitution to a third party, i.e. the new tenant. Most leases have a restriction on subleasing that must be approved by the landlord. Your lease obligation was to continue to pay for the entirety of the lease agreement. You stopped paying. Therefore, you broke the lease. The land lord is now mitigating their damages for your breach by putting another person in your place. The good news is that technically you are on the hook for the whole amount owed for the life of the lease, that is $xxx per month. By putting someone else in the apartment, the landlord is mitigating his damage which he is required to do by law, thus protecting you from more damages. The bad news, again, is you breached the contract, and probably lost your deposit.

All of that said, this is an unfortunate situation. Usually, in these situations, the original tenant (you) would receive the deposit from the sub tenant, while the landlord holds your deposit until the end of the lease agreement. If everything was copacetic, the landlord would return the deposit to you or to the new tenant depending on who is left holding the bag. You would need to find out if the new tenant paid the deposit to the landlord already and if it was connected to your original lease agreement. In that case, the landlord would be double dipping deposits on the same contract, and you might have reason to go after the landlord for your deposit. The other common place in these situations is that the original tenant does, in fact, sublease (a contract between the original tenant and the subleasee). You should know that in a sublease situation, the original person on the lease (you) is still on the hook for monthly payments. Then the subleasee pays the original tenant who then pays the landlord or the subleasee pays the landlord directly. However, as I said before, this may be restricted by the terms of the original lease. If that is true, the landlord can claim that you broke the lease by simply signing a sublease agreement OR the savvy subleasee will simply not pay the rent knowing that their contract is invalid (because it violates the original lease), leaving you with the bill. Usually this is a balance you have to work out for yourself. Do you break the lease and lose your deposit, or do you sublease your apartment, running the risk of breaching the contract anyway and keeping the month to month liability of owing rent for a place you don't even live in anymore.

Breaking a lease can be very difficult and really depends on the personalities involved, especially the landlord. Next time you rent, make sure to ask these questions and feel your landlord out. You may have to pass on a great apartment in order to save yourself a big headache down the road.

As I said before, this particular issue is really covered by Wisconsin law and should be taken up by a Wisconsin attorney specializing in landlord/tenant law. The states have very different public policies and standards for favoring landlords or tenants. Depending on the specific language of the lease agreement, the statute, and the behavior of all parties involved, you may very well have recourse. However, if you are really going to pursue the issue, you should seek Wisconsin attorneys with the signed lease agreement in hand.

I hope this is helpful. Good luck with your new job!!!

William Robinson Eilers, Esq.