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ILLINOIS SUPREME
COURT
Landis v MARC Realty
LLC (2009)
VG Marina
Mgmt. Corp. v. Wiener (2007)
Lawrence v Regent
Realty
(2001)
Dobbins v. Duquid
(1872)
ILLINOIS
COURTS OF APPEAL
Willis v. NAICO Real Estate
(2008)
VG Marina
Mgmt. Corp. v. Wiener (2007,
2008)
Detrana v. Such (2006)
Krawczyk
v. Livaditis
(2006)
Allen v. Lin
(2005)
Turner v. 1212
S. Mich. P'ship (2005)
Starr v. Gay
(2004)
Sternic v. Hunter
Properties
(2003)
Pitts v. Holt
(1999)
Namur v. The
Habitat Company (1998)
American
National Bank v. Powell (1997)
Szpila v.
Burke (1996)
Plambeck
v.Greystone Management (1996)
Friedman v. Krupp
(1996)
Spiegel v.
Hollywood Towers Cond. Assoc.
(1996)
Meyer v. Cohen
(1993)
Solomon v. American Nat'l
Bank and Trust Co.
(1993)
Reed v. Burns (1992)
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This case was GOOD for Tenants.
The Appellate Court said the landlord's refusal to renew the tenant's
lease WAS retaliatory, and reversed the trial court's finding to the
contrary. Under
RLTO
§
5-12-150, once a
tenant engages in protected conduct like complaining about repairs they
want made, for the next 12 months a landlord's refusal to renew their
lease or to evict the tenant will be PRESUMED retaliatory. The
burden then shifts to the landlord to prove their motive was not
retaliatory.
The whole case is worth
reading.
Reed v. Burns,
238 Ill. App. 3d 148 (1st Dist. 1992)
Following a bench
trial, the trial court entered judgment for plaintiff and against
defendant in defendant's claim for damages in a landlord-tenant dispute.
(Ill. Rev. Stat. 1989, ch. 110, par. 9-207.) On appeal defendant
contends that the trial court erred as a matter of law in concluding
that State law supersedes a Chicago municipal ordinance in an action for
retaliatory eviction.
On November 5, 1990, plaintiff filed her complaint against defendant for
possession of an apartment in Chicago, because defendant had "held over"
after her tenancy expired. Defendant counterclaimed, alleging that under
the applicable municipal ordinance she had exercised her right to
withhold part of her rent because of defects in the premises which
plaintiff as her landlord had refused to remedy. Defendant also alleged
that she had received a 30-day notice to terminate the tenancy which was
dated September 29, 1990, and that this date was 10 days after defendant
had sent her third letter to plaintiff complaining of noncompliance with
the Chicago municipal housing code. Defendant filed her motion for
summary judgment. In it defendant contended that she was entitled to
judgment because:
"when a landlord serves a tenant with a 30-day Notice to Terminate
Tenancy and then proceeds to accept rent subsequent to the date on which
the tenancy is to expire, the landlord has waived the legal effect of
the notice."
The trial court dismissed plaintiff's forcible entry and detainer claim
by agreed order and set defendant's counterclaim for retaliatory
eviction for trial.
At trial, defendant testified that she was current in her rent and had
never been delinquent in that regard. Defendant further testified that
after moving to plaintiff's apartment in June 1989, she had experienced
problems with the plumbing, lighting fixtures, and rodents. Defendant
then telephoned plaintiff, and after receiving no response, she wrote
her a letter on July 17, 1989, about the problem. According to
defendant, the plumbing problems were subsequently corrected, but in
December 1989 she telephoned plaintiff about lighting problems and wrote
a letter to this effect. Also according to defendant, the lighting
problem was not resolved until July 1990.
In addition, defendant testified that she first noticed a rodent problem
in January 1990, and that she subsequently telephoned plaintiff about
this problem two or three times per month. According to defendant, this
problem has never been resolved, although she had written a letter to
plaintiff on this matter dated September 19, 1990.
Copies of all three letters were admitted into evidence. According to
defendant, after this last letter plaintiff served her with the 30-day
notice which was also admitted into evidence. Defendant also testified
that she telephoned plaintiff on numerous occasions to mow the lawn or
shovel the snow on the premises.
On cross-examination defendant said at the time plaintiff acquired
ownership of the property, her children were three and five years of
age, but were not tall enough to touch the string which controlled the
kitchen ceiling light. Defendant also testified that she properly
disposed of her garbage in plastic bags and placed them in the backyard
for later disposal in an appropriate manner. Defendant also said that
she had been under a written lease with the previous landlord.
Defendant further testified that plaintiff was aware that defendant had
called the "No Heat Hotline" in January 1990, and that plaintiff had
never repaired defendant's thermostat.
Plaintiff testified that she became defendant's landlord in 1989.
According to plaintiff, she had sent an electrician to repair the
lighting fixture in defendant's apartment, and she also replaced the
entire fixture in April 1990. Plaintiff said that she had distributed
exterminating spray for roaches to the tenants and asked them to "pass
the spray thing from apartment to apartment to exterminate." Plaintiff
said that she visited defendant's apartment several times and noticed
"garbage left uncovered, clothes on the floor, and stacks of toys," and
food items left out in the kitchen. According to plaintiff, defendant
was on a month-to-month lease and except for defendant, she had never
evicted a tenant for any reason other than nonpayment of rent. She also
said that she never received any written notice from a tenant other than
defendant about withholding rent because of problems with his or her
apartment.
Defendant again testified and denied that she ever left her garbage
uncovered but stated that she left food out because "I can't put it in
the cabinets because the rats eat it." Defendant again testified that
she still had problems with rodents in her apartment.
The trial court then stated in relevant part:
"I think it's quite clear from the testimony that was received that what
we have is a month to month tenancy. That being so I think this is
dispositive in terms of whether or not the retaliatory eviction has
occurred in this situation.
* * * There is no doubt that everything that was requested was complied
with.
* * *
* * * Where there is * * * a month-to-month tenancy, I think the State
law preempts the City of Chicago ordinance and a landlord does have the
right to terminate a tenancy for no cause * * *."
The trial court then entered judgment for plaintiff and against
defendant. At the hearing on the motion for reconsideration, the trial
court stated in relevant part:
"State law gives a landlord a right to terminate a month-to-month
tenancy * * * with a 30 day notice for no reason. I don't see anything
in the landlord-tenant ordinance that refutes that.
* * *
Based on that, I think state law still supersedes when it says you need
no reason for wanting your apartment back. If there is no lease, the
only requirement you have is to give them a 30-day notice."
The trial court then denied defendant's motion for reconsideration.
On appeal defendant first contends that the trial court erred in
concluding that State law supersedes the Chicago landlord tenant
ordinance when a tenant resides in an apartment under an oral
month-to-month lease. The Illinois Supreme Court has repeatedly held
that an ordinance which is within a municipality's home-rule powers
supersedes, within the home-rule unit's territory, a conflicting statute
passed before the 1970 Constitution took effect. (Kanellos v. County
of Cook (1972), 53 Ill. 2d 161, 166, 290 N.E.2d 240; People ex rel.
Hanrahan v. Beck (1973), 54 Ill. 2d 561, 565-66, 301 N.E.2d 281;
Winokur v. Rosewell (1980), 83 Ill. 2d 92, 97, 414 N.E.2d 724, 46
Ill. Dec. 671.) The City of Chicago is a home-rule unit. See Ill. Const.
1970, art. VII,
§
6(a).
In the case at bar, section 5-12-150 of the Residential Landlord and
Tenant Ordinance (Chicago Municipal Code
§
5-12-150 (1991))
(ordinance) reads in relevant part:
"It is declared to be against public policy of the City of Chicago for a
landlord to take retaliatory action against a tenant, except for
violation of a rental agreement or a violation of a law or ordinance. A
landlord may not knowingly terminate a tenancy * * * because the tenant
has in good faith:
* * *
(b) Complained of a * * * housing * * * or similar code violation or an
illegal landlord practice to a community organization or the news media;
or
* * *
(d) Requested the landlord to make repairs to the premises as required *
* *.
* * *
(g) Exercised any right or remedy provided by law. If the landlord acts
in violation of this section, the tenant has a defense in any
retaliatory action against him for possession * * *. * * * In an action
by or against the tenant, if there is evidence of tenant conduct
protected herein within one year prior to the alleged act of
retaliation, that evidence shall create a rebuttable presumption that
the landlord's conduct was retaliatory."
This section was passed on July 8, 1986, and became effective on October
15, 1986.
Section 9-207 of the Illinois Code of Civil Procedure (Ill. Rev. Stat.
1989, ch. 110, par. 9-207) reads in relevant part:
"In all cases of tenancy for any term less than one year, other than
tenancy from week to week, where the tenant holds over without special
agreement, the landlord may terminate the tenancy by 30 days' notice, in
writing, and may maintain an action for forcible entry and detainer * *
*."
This section was effective prior to the relevant effective date of July
1, 1971, of the home-rule provisions in the 1970 Constitution. (See Ill.
Rev. Stat. 1971, ch. 80, par. 6.) Because the municipality of Chicago is
a home-rule unit (see Ill. Const. 1970, art. 7, ง 6(a)) and the
ordinance addresses the well-being of its citizens, we conclude that the
ordinance supersedes the statute in this instance. See City of
Evanston v. Create, Inc. (1981), 85 Ill. 2d 101, 113, 421 N.E.2d
196, 51 Ill. Dec. 688 (landlord-tenant relationship is a proper exercise
of home-rule authority).
Plaintiff has also contended that because the ordinance does not
explicitly state that month-to-month tenancies are within its scope,
then it should be construed consistenty with the State law which
provides that month-to-month tenancies can be terminated without cause.
However, chapter 5-12 of the Code specifically lists rental agreements
which are excluded from the ordinance's coverage, and month-to-month
tenancies per se are not among these exclusions. (Chicago Municipal Code
§
5-12-020 (1991).) For
this reason we conclude that month-to-month tenancies are within the
scope of this ordinance.
Having concluded that the ordinance governs, we next address whether
defendant has proven her cause of action in retaliatory eviction in the
case at bar. Under the ordinance there is a rebuttable presumption
that an eviction was retaliatory if this event occurred within one year
of what could be construed as the tenant's protected acts. Also under
the ordinance, a landlord must comply with all the applicable provisions
of the municipal code and promptly make all repairs to a premises to
ensure compliance. (Chicago Municipal Code
§
5-12-070 (1991).) If
the landlord fails to supply heat, exterminate rodents, and provide
adequate light, then there is material noncompliance with section
5-12-070 (Chicago Municipal Code
§
5-12-110 (1991)).
Under these circumstances, the tenant may recover damages (Chicago
Municipal Code
§
5-12-110(e) (1991)), and deduct an appropriate amount, reflecting the
reduced value of the premises, from each rental payment. Chicago
Municipal Code
§
5-12-110(d) (1991).
In the case at bar defendant complained about the heat, lighting, and
rodents within one year of receiving her September 29, 1990, 30-day
notice from plaintiff. Plaintiff has not rebutted the ordinance's
presumption of retaliatory eviction by establishing a history of
defendant's chronic rent default, nuisance or other problems created by
her possession of the premises. Plaintiff also admitted that prior to
serving defendant with an eviction notice she had never served such a
notice unless a tenant had defaulted in rental payment. Contrary to the
trial court's finding of fact, the record establishes that defendant's
rodent problem was never solved, nor was the heating problem resolved
until defendant called for city intervention. We therefore conclude that
the eviction was retaliatory in motive and that the trial court's
decision was against the manifest weight of the evidence and incorrect
as a matter of law.
For the above reasons, the judgment of the circuit court of Cook County
is reversed and the cause remanded for entry of judgment in defendant's
favor for costs and damages as provided by the ordinance.
Reversed and remanded.
EGAN, P.J., and McNAMARA and RAKOWSKI, JJ., concur. |
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