Landlord and Tenant Law

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Author: Revisions contributed by, Julie Harcum, Legal Assistance Foundation of Metropolitan Chicago
Last updated: September 2011

Local, State, and Federal Laws

Forcible Entry and Detainer, 735 ILCS 5/9, 101 et seq.
Landlord and Tenant Act, 765 ILCS 705/5 et seq.
Security Deposit Return Act, 765 ILCS 710/1
Security Deposit Interest Act, 765 ILCS 715/1,2
Rental Property Utility Service Act, 765 ILCS 735/1 et seq.
Fair Housing Act, 42 USC §  3601 et seq.
Illinois Human Rights Act, 775 ILCS 5/1-101 et seq.
Retaliatory Eviction Act, 765 ILCS 720 /1 et seq.
Illinois Residential Tenant's Right to Repair Act, 765 ILCS 742/5 et seq.
Chicago Residential Landlord and Tenant Ordinance, Municipal Code of Chicago, Section 5-12-080 (other local ordinances may apply, for example, the Residential Landlord and Tenant Ordinance of Evanston)

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Leases

General

Leases may be oral or written. Written leases are typically form leases presented to the tenant by the lessor. Tenant applicants can always try to negotiate with prospective lessors the terms of form leases presented to them.

Duration

Where no lease term is specified in an oral or written lease, courts imply renewable lease terms for the periods for which rental payments are paid, e.g., a month to month tenancy where rent is paid every month, a week to week tenancy where rent is paid every week.

Many form leases provide for renewal of the tenancy on a periodic basis (e.g. month to month) after the expiration of the first lease term.

Construction of Leases

Generally, contract rules of construction apply. Midland Management Co. v. Helgason 158 Ill.2d 97, 630 N.E.2d 836 (1994). Ambiguities are construed against the drafter. Rose v. Chicago Housing Authority 148 Ill Dec. 534, 560 N.E. 2d 1131 (1990), American Apartment Management Co. v. Phillips 210 Ill Dec. 639, 653 N.E. 2d 834 (1995).

Penalty Clauses

Lease provisions that permit penalties may be unenforceable. Examples may be late charges unrelated to the landlord’s actual cost of seeking the rent due. Builder’s Concrete Co. v. Fred Fauber and Sons, 58 Ill. App.3d 100, 373 N.E.2d 863, 15 Ill.Dec. 517 (3d Dist. 1978). Excessive late fees are prohibited by Chicago Residential Landlord and Tenant Ordinance 5-12-140(h) (limiting a late fee to $10 for the first $500 of rent and 5% of any amount over $500). If a landlord attempts to enforce an excessive late fee, the tenant is entitled to two months rent.

Warranty of Habitability

A warranty of habitability is implied in every residential lease. Jack Spring v. Little, 50 Ill.2d 351, 280 N.E. 2d 208 (1972); Glasoe v. Trinkle, 107 Ill.2d 1, 479 N.E.2d 915, 88 Ill Dec. 895 (1985).  Tenants may enforce this warranty in affirmative law suits, or in defense to eviction actions based on their non-payment of rent. 

Covenant of Quiet Enjoyment

Every tenant is entitled to the covenant of quiet enjoyment. The landlord may not interfere with the tenant’s quiet enjoyment, for example, by entering the premises without the tenant’s permission or as provided in the parties' lease.  Chapman v. Brokaw, 588 N.E.2d 462, 167 Ill. Dec. 821 (3rd1992).

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Security Deposits

General

Security Deposit Return Act, 765 ILCS 710 / 0.01

If residential real property contains five or more units, a lessor who has received a security deposit from a tenant must provide the tenant with a written statement of any damage to the property before deducting repair costs from the security deposit. The lessor may not withhold any part of the deposit as compensation for property damage unless the lessor has, within 30 days of the date the tenant vacates, sent the tenant a written itemized statement of the damages allegedly caused by the tenant to the premises and the actual or estimated cost of repair of the damages, with any paid receipts, or copies, attached. The lessor may include a reasonable cost for his own labor, if completing the repairs himself. If only an estimate is given, the lessor must give the tenant paid receipts showing the actual cost within 30 days from the date of the itemized statement. If the lessor does not furnish the tenant with the statement and receipts, the lessor must, within 45 days, return the security deposit to the tenant.

The Security Deposit Return Act does not require a lessor to send any statement to the tenant if the lessor withheld the security deposit because of unpaid rent and not because of property damage. This Act was intended by legislature to apply only where part or all of the security deposit is retained for claimed property damage, and is inapplicable to situations where there is a good-faith dispute over a deposit for reasons other than a claim for property damage. Ikari v. Mason Prop., Ill.App.3d 222, 731 N.E.2d 975 (2d Dist. 2000).

Tenant Remedy:

The tenant may file an action in circuit court if the lessor violates the Security Deposit Return Act. If the court finds that the lessor has refused to provide the statement as required or has provided a statement in bad faith and has failed to return the deposit timely, the lessor is liable for twice the security deposit, court costs, and reasonable attorney's fees. The tenant should also demand return of the deposit itself in addition to the penalty of twice the deposit.

Chicago Residential Landlord and Tenant Ordinance, Municipal Code of Chicago, Section 5-12-080

 
The Chicago Residential Landlord and Tenant Ordinance (CRLTO) also provides a tenant with protections as to the holding and return of a security deposit.

Applicability of Chicago ordinance.

The Chicago ordinance applies to dwelling units in Chicago, except the following:

  • An owner-occupied apartment building containing six apartments or less
  • A hotel, motel, inn, rooming house, or boarding house, unless the tenant has lived in the unit for more than 31 days and pays monthly rent
  • A hospital, convent, monastery, extended care facility, not-for profit home for the aged, temporary overnight or transitional shelter, or school dormitory
  • A dwelling unit that is occupied by a purchaser under a real estate purchase contract prior to transfer of title to the purchaser or occupied by a seller under a real estate purchase contract after transfer of title to the seller
  • A building owned by the tenant's employer, if the tenant only has the right to live in the building if the tenant is employed in or about the premises, or
  • A dwelling unit in a cooperative occupied by a holder of a proprietary lease
Requirements on landlord for holding a security deposit.

Under the Chicago ordinance, the following requirements pertain to a landlord holding a security deposit:

  • Landlord must hold deposit in a federally insured, interest-bearing bank account;
  • Landlord shall not commingle the deposit with landlord’s assets;
  • Landlord must provide a tenant notice of the name and address of the financial institution in which the deposit is held;
  • Landlord must give a tenant a receipt indicating the amount of such security deposit, the name of the person receiving it and, in the case of the agent, the name of the landlord for whom such security deposit is received, the date on which it is received, and a description of the dwelling unit. The receipt shall be signed by the person receiving the security deposit. Failure to comply with this subsection shall entitle the tenant to immediate return of security deposit;
  • Certain exceptions apply for electronic funds transfer;
  • A landlord must pay interest on a deposit held more than 6 months (see below) within 30 days after the end of each 12-month period.
Tenant Remedy:

If the landlord or landlord's agent fails to comply with Section 5-12-080 of the ordinance, the tenant shall be awarded damages of two times the security deposit plus court costs and reasonable attorney's fees. In Krawczyk v. Livaditis, the appellate court refused to allow "stacking" of damages for different violations of the subsections of Section 5-12-080. 366 Ill.App.3d 375, 851 N.E.2d 862 (1st Dist. 2006). In 2010, Section 5-12-080 was amended. Among other things, the following language regarding the penalty for violation of Section 5-12-080 now appears:

(f) (1) Subject to subsection (f)(2), if the landlord fails to comply with any provision of Section 5-12-080(a) - (e), the tenant shall be awarded damages in an amount equal to two times the security deposit plus interest at a rate determined in accordance with Section 5-12-081. This subsection does not preclude the tenant from recovering other damages to which he may be entitled under this chapter 5-12-081. (Emphasis added).

It should be argued that the reference to Section 5-12-081 is a typographical error because: 1) the preceding language says that a tenant can recover other damages under this chapter (presumably 5-12-080), and 2) Section 5-12-081 does not authorize damages (it simply refers to the method by which interest is calculated). Under this argument, the tenant should seek twice the deposit for each violation that occurs.

Requirements for return of the deposit under the ordinance.

Under the Chicago ordinance, a landlord must return a security deposit within 45 days after the date the tenant vacates the dwelling unit. However, the landlord may deduct from the security deposit (1) any unpaid rent which has not been validly withheld or deducted pursuant to state or federal law or local ordinance, and (2) a reasonable amount necessary to repair any damage caused to the premises by the tenant or any person under the tenant's control. The landlord may not deduct for damage based only on reasonable wear and tear.

In the case of damage (beyond ordinary wear and tear), the landlord must deliver or mail to the last known address of the tenant within 30 days an itemized statement of damages and the estimated or actual cost for repairing or replacing each item. The landlord must attach copies of paid receipts for the repair or replacement to the statement. If an estimated cost is given, the landlord must furnish the tenant with copies of paid receipts within 30 days from the date the damage statement was furnished to the tenant.

Tenant Remedy:

If the landlord or landlord's agent fails to comply with section 5-12-080 of the ordinance, the tenant shall be awarded damages of two times the security deposit plus interest in addition to court costs and reasonable attorney's fees. The tenant should also demand return of the deposit itself in addition to the penalty of twice the deposit.

Security Deposit Interest

The Security Deposit Interest Act, 765 ILCS 715

The Act applies to buildings or complexes with 25 or more residential units.  The lessor must have held the security deposit for more than six months.

The lessor must pay interest on security deposits computed from the date of the lessee’s deposit with the lessor.

Interest must be paid at a rate equal to the minimum passbook savings account interest rate paid by the largest Illinois commercial bank as of December 31 of the year prior to the beginning of the lease.

Tenant Remedies:

Lessor must make the interest payment by cash or by credit against rent due within 30 days of the end of each 12 month rental period, unless the tenant is in default under the lease.

A tenant may bring an action against a lessor who violates the Act. A lessor who willfully fails or refuses to pay the interest due is liable for the entire security deposit, together with court costs and reasonable attorney's fees.

Chicago Residential Landlord and Tenant Ordinance, Municipal Code of Chicago, Section 5-12-080

For tenancies governed by the Chicago ordinance, all landlords who hold a security deposit for more than six months must pay interest on the deposit. The rate is determined by the city comptroller based on a formula contained in section 5-12-081 of the ordinance. The interest rate is published in January of each year. The published rate applies to rental agreements that are entered into that calendar year. The landlord must pay interest within 30 days after the end of each 12 month rental period to the tenant by cash or credit to be applied to the rent due. In addition, the landlord must pay interest on the deposit within 45 days after the tenant moves out of the dwelling unit.

The ordinance also requires a landlord to hold all security deposits in a federally insured interest-bearing account in a bank, savings and loan association, or other financial institution located in Illinois. The landlord may not commingle a security deposit with the landlord's assets. The security deposit continues to be the property of the tenant.

Tenant Remedy:

Under the 2010 amendment to the ordinance, if a landlord pays a timely but deficient amount of interest, the tenant must take steps in accordance with Section 5-12-080(f)(2) before bringing an action in court. Other than that, if the landlord or agent fails to comply with the interest requirements under Section 5-12-080, the tenant shall be awarded damages of two times the security deposit plus interest thereon in addition to court costs and reasonable attorney's fees.

 

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Notice to Terminate

General

All tenants are entitled to a notice of termination of tenancy or demand for rent before the lessor may bring an action in forcible entry and detainer.

Exceptions:
  • No notice of termination of tenancy is required at the expiration of the lease period.  735 ILCS 5 / 9-213. However, if the Chicago ordinance (CRLTO) governs the rental agreement, the landlord must notify the tenant in writing at least 30 days prior to the date of termination of the lease or the landlord's intention not to renew the lease.  Section 5-12-130(j);
  • Some courts have held that notice may not be required if the tenant has agreed in the lease to waive it. Lessors may waive their right to assert the waiver of notice provision in a lease. See e.g., Advich v. Kleinert, 69 Ill.2d 1, 370 N.E. 2d 504, 12 Ill. Dec. 700 (1970). A lease provision that waives the right to notice of termination is not enforceable under the CRLTO. Section 5-12-140(d).
Written Notice.

Notices of termination must be in writing and describe the premises with reasonable certainty.

Timing of Notices.

Notices must afford the tenant the full number of days required by statute.  Hoefler v. Erickson, 331 Ill.App. 577, 73 N.E. 2d 448 (1st Dist. 1947). The date of service is excluded, and if the last day falls on a Saturday or Sunday or holiday, it is also excluded.  5 ILCS 70 / 1.11.

Holdover Tenancy

Willful Hold Over,

735 ILCS 5 / 9-202

A tenant who willfully stays after expiration of the lease term must pay double the value of the unit. The landlord must demand in writing possession of the premises before claiming double rent.

Hold Over After Notice,

735 ILCS 5 / 9-203

A tenant who gives notice of intent to vacate the unit and who stays beyond the date mentioned shall pay double the value of the unit.

Five-Day Notice (Rent Demand)

Rent Demand Five-Day Notice,

735 ILCS 5 / 9-209

When rent is not paid on the due date, the lessor may serve on the tenant a five-day notice stating that unless the rent is paid within five days of service, the tenancy will be terminated.  The tenant can avoid any eviction proceeding by tendering to the lessor the rent due.

The notice must state:
  • the amount of rent due;
  • the tenant has the right to pay the rent claimed due within the five-day period; and
  • if the rent due is not paid within the five-day period, the tenancy will be terminate (the first day is the day after the tenant gets notice).
Tenant Disputes Rent Claimed Due

A tenant who is served a five-day notice may dispute the amount of rent claimed due.  If the amount claimed exceeds the amount the tenant believes due, explore the reasons why. A tender of the actual amount due should defeat the lessor’s claim to possession. Elizondo v. Medina, 100 Ill.App.3d 718, 427 N.E. 2d 381, 56 Ill.Dec. 301 (1st Dist. 1981).

Rent Demand Should Not Include Non-Rent Amounts

A five-day rent demand should include rent only, and not other claims such as damages, security deposits, attorneys fees, etc.  735 ILCS 5 / 9-209See, Payne v. Coates Miller, 52 Ill. App.3d 288, 367 N.E. 2d 406, 10 Ill.Dec. 18 (1st Dist. 1977) (affirming an injunction enjoining lessor from including in five-day rent demands claims for attorney's fees and costs). The tenant should be advised to tender the rent actually due.

Tender

Some courts can narrowly interpret tender. A tenant should tender rent due in the manner demanded on the five-day notice. If the notice does not specify, the tenant should tender the rent in accord with the past practice of the parties. In tendering an amount in person, the tenant should take a witness, and actually show the lessor or his designated agent the money or other manner of payment.

Refusal of Tender

If the lessor refuses tender of the amount due, the tenant can bring a motion to dismiss any eviction action based on the five-day demand for rent. Madison v. Rosser, 3 Ill.App.3d 851, 279 N.E. 2d 375 (1st Dist. 1972).

Tender Excused

Tender may be excused where it would be futile. If the lessor tells the tenant not to try to tender, or if the rent amount claimed due is grossly excessive, tender may be futile. Casciola v. Gardner, 101 Ill.App.3d 852, 428 N.E. 2d 921, 57 Ill.Dec. 241 (1st Dist. 1981). This argument may be even stronger if the lessor includes the "only full payment" language included in 9-209. That language is:

Only full payment of the amount of rent demanded in this notice will waive the landlord’s right to terminate the lease under this notice, unless the landlord agrees in writing to continue the lease in exchange for receiving partial payment.

Ten-Day Notice to Quit

Ten-Day Notice to Quit,

735 ILCS 5 / 9-210

The lessor may terminate the tenancy by a ten-day notice to quit when the tenant has violated a term or condition of the lease.

The notice to quit must state:
  • the nature of the lease violation and
  • the tenancy is terminated. Goldblatt v. Pearl, 338 Ill.App.654, 88 N.E.2d 377 (1st Dist. 1949) abst.

It is necessary to review the term of the lease that the lessor claims has been breached.  Ambiguities in any lease terms are construed against the drafter. Chicago Housing Authority v. Rose, 203 Ill.App.3d 208, 560 N.E.2d 1131, 148 Ill.Dec. 534 (1st Dist. 1990).

Nonpayment of rent in a notice to quit

The lessor may claim nonpayment of rent as the lease violation in a ten-day notice to quit, but the tenant can avoid eviction by tendering the rent due in the ten-day period. Westerman v. Gilmore, 17 Ill.App.2d 455, 150 N.E.2d 660 (3rd Dist. 1958).

Chicago Residential Landlord and Tenant Ordinance,

Municipal Code of Chicago, Section 5-12-130(b)

Under the Chicago ordinance, a landlord may give the tenant a ten-day notice if the tenant is in material non-compliance with the rental agreement or with the tenant's responsibilities under section 5-12-040 of the ordinance.  In contrast to the state statute, the ordinance requires that the tenant be given the opportunity to remedy the violation within the ten-day period.  The ten-day notice must include the following:

  • description of the acts or omissions constituting the breach and
  • statement to the tenant that the rental agreement will terminate ten days after receipt of the notice, unless the breach is remedied by the tenant within that time period.

If the tenant has created a disturbance to neighbors, the ten-day notice must give the tenant the opportunity to remedy the violation.  However, if the tenant has created another disturbance within 60 days after receipt of the notice, the landlord may terminate the rental agreement by giving a second ten-day notice.  The second notice does not have to provide the tenant the right to remedy the violation.

Thirty-Day Notice

735 ILCS 5 / 9-207

An oral month to month tenancy may be terminated on a written 30-day notice. The notice need not state a reason for the termination of the tenancy. The notice must be served at least 30 days before the date of termination and must state the last date of the rental period. Hoefler v. Erickson, 73 N.E.2d 448 (1st Dist. 1947).

Service of Notice

Service

735 ILCS 5 / 9-211

Any notice of termination of tenancy, including a five-day or thirty-day notice must be served by one of the following means:

  • personal service on the tenant
  • service on a person 13 years old or older if residing on the premises or in possession of the premises
  • certified or registered mail, with return receipt or
  • posting, but only where no one is in actual possession

In Prairie Mgmt. Corp. v. Bell, 289 Ill. App. 3d 746, 752, 682 N.E.2d 141, 145 (1st Dist. 1997), the court held that the methods of service identified in this statutory provision are not meant to be exhaustive. Furthermore, a tenant's acknowledged receipt of the notice cures any defect in the landlord's manner of service. Id. However, in construing the posting section of the statute, the Appellate Court found that there was no jurisdiction over a tenant who was in actual possession of the premises and whom the landlord served by posting. Figueroa v. Deacon, 404 Ill.App.3d 48, 935 N.E.2d 1080 (1st Dist.2010).

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Evictions

735 ILCS 5 / 9-101 et seq
Supreme Court Rule 181(b)(2)

General

Lessors must evict tenants through judicial proceedings. The judicial eviction proceeding is called a Forcible Entry and Detainer Action. The forcible entry and detainer requirements are contained in 735 ILCS 5 / 9-101 et seq.

A forcible entry and detainer action is an action to determine the right to possession of the premises at issue.  735 ILCS 5 / 9-102.

It is a summary proceeding; matters not germane to possession may not be joined, but the statute specifically allows a claim for rent to be joined. 735 ILCS 5 / 9-106. Practitioners in Cook County should be aware that the courts narrowly construe germaneness. In any event, if at all possible, any germane counterclaims should also be pled as affirmative defenses.

Examples of germane matters:

  • defenses based on poor housing conditions such as a breach of the warranty of habitability (plead ordinance violations in addition to Jack Spring)
  • retaliatory eviction such as when a landlord files a case after a tenant reports poor housing conditions or after a tenant obtains an order of protection
  • fair housing violations, if relevant to the issue of possession
  • defenses in a nonpayment of rent case where a tenant believes no rent is owed, and
  • defenses in a breach of lease claim where a tenant claims the lease was not breached

Complaint

735 ILCS 5 / 9-106

The complaint need only allege that the plaintiff is entitled to possession of the premises and that the defendant unlawfully withholds possession of the premises.

Service

Service of summons must be made in accordance with the general requirements of the Code of Civil Procedure. There must be strict compliance with the statutory requirements for service. Chiaro v. Lemberis, 28 Ill. App. 2d 164, 171 N.E. 2d 81 (1st Dist. 1960).

See, 735 ILCS 5 / 2-203, for service on individuals. It provides that service shall be made:

  • by leaving a copy of the summons with the defendant personally; or
  • by leaving a copy at the defendant’s usual place of abode, with some person of the family or a person residing there, of the age of 13 years or upwards, and informing that person of the contents of the summons, provided the officer or other person making service shall also send a copy of the summons in a sealed envelope with postage fully prepaid, addressed to the defendant at his or her usual place of abode.  The certificate of the officer or affidavit of the person that he or she has sent the copy in pursuance of this Section is evidence that he or she has done so.
Constructive service.

735 ILCS 5 / 9-107 provides that constructive service may be had by posting and mailing or by publication and mailing under 735 ILCS 5 / 2-206, but only where the officer returns the summons stating that service could not be obtained. Plaintiff or plaintiff's attorney must file an affidavit showing the basis for use of constructive service, as set forth in section 5/9-107. Judgment for rent may not be entered in such cases. A landlord must make a due and diligent inquiry into the whereabouts of the tenant before relying on constructive service. Equity Residential Properties Management Corp. v. Nasolo, 364 Ill.App.3d 26, 32; Bell Federal Savings & Loan Association v. Horton, 59 Ill. App. 3d 923, 928 (5th Dist. 1978). “Depending upon the particular circumstances of a case, inquiring with neighbors, inquiring with known counsel, checking court records, and investigating employment information may be part of the ‘due inquiry’ and ‘diligent inquiry’ required of a plaintiff intending to rely on constructive service.” Nalaso 364 Ill. App. 3d at 32. If these statutorily mandated due and diligent inquiries are not completed by the plaintiff, “the court has no jurisdiction over that defendant and a default judgment entered against him or her is void.” Id. 364 Ill. App. 3d at 32.

Timing of service.

Summons must be served at least three days prior to the date the defendant is required to appear. Illinois Supreme Court Rule 102(b).

Objections to service.

Objections to service may be made by filing a motion to quash service of process under 735 ILCS 5 / 2-301. The defendant no longer must file a special and limited appearance with the motion. If the reasons for the objection do not appear on the face of the pleadings on file, an affidavit must support the motion.

Answer

A defendant in a forcible entry and detainer action must appear at the time and place specified in the summons. Supreme Court Rule 181 (b) (2). The defendant need not file an answer, unless ordered to do so by the court. When no answer is ordered, the allegations in the complaint are deemed denied, and any defense may be proved as if it were specifically pleaded. Id. Practitioners in Cook County may wish to file affirmative defenses to avoid allegations of surprise, and preclusions of affirmative defenses, at trial.

735 ILCS 5/9-108

A defendant in a forcible entry and detainer action has a right to a jury trial. The demand must be made when the defendant makes his/her first appearance in order to preserve the right. 735 ILCS 5/2-1105. Since no answer is required in a forcible action, the jury demand should be filed on or before the first appearance date. First Bank of Oak Park v. Carswell, 111 Ill. App. 3d 71, 73, 443 N.E.2d 755, 757 (1st Dist. 1982); but see Pecoraro v. Kesner, 217 Ill. App. 3d 1039, 1045, 578 N.E.2d 53, 56 (1st Dist. 1991) (reversing trial court's decision to strike jury demand filed eleven days after tenant was first required to appear in forcible action, and stating that statutes regulating the right to a jury trial should be liberally construed in favor of allowing this right).

Burden of Proof

Plaintiff has the burden to show its right to possession by a preponderance of the evidence. Connery v. Van Thournout, 303 Ill. App. 406, 25 N.E.2d 397, 399 (2nd Dist. 1940). Plaintiff must also show strict adherence to the procedural requirements, including notice requirements, of the forcible entry and detainer provisions of the Code of Civil Procedure.

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Tenants in Foreclosure

Federal Law

Protecting Tenants at Foreclosure Act of 2009 (PTFA). Pub. L. 111-22, Div. A. Title VII.

The PTFA requires that tenants residing in foreclosed residential properties be provided notice to vacate at least 90 days in advance of the date by which the immediate successor, generally the purchaser, seeks to have the tenants vacate the property.

Furthermore, the term of any bona fide lease also remains in effect for the full length of the lease, and the tenant is entitled to 90 days notice prior to the end of the lease. Bona fide lease holders may not be removed by filing a supplemental petition for succession in the original foreclosure suit. 

The PTFA  will sunset on December 31, 2014. 

State Law

735 ILCS 5/15-1701

The Illinois law states that the purchaser may not file a forcible action against the occupant of the mortgaged real estate “until 90 days after a notice of intent to file the action has been properly served upon the occupant.”

The purchaser may not file a supplemental petition for succession against a bona fide lease holder. 

The purchaser may not file a forcible action against a bona fide lease holder until 90 days prior to the end of the lease, up to one year. 

A lease or tenancy shall be considered bona fide if:

  • The mortgagor or the child, spouse, or parent of the mortgagor under the contract is not the tenant
  • The lease or tenancy was the result of an arm's length transaction; and
  • The rent is not substantially less than fair market value for the property or unit, unless reduced by Federal, State, or local subsidy. 

735 ILCS 5/9-121(c).

The court file relating to a forcible entry and detainer action brought against a tenant who would have lawful possession of the premises but for the foreclosure on the property, or a bona fide lease holder, shall be sealed pursuant to Section 15-1701.

Chicago Ordinance

Residents of Chicago may be afforded additional protections under the Residential Landlord and Tenant Ordinance (RLTO) and Keep Chicago Renting Ordinance (KCRO). 

RLTO 5-12-095

Within 7 days of being served a foreclosure notice, an owner or landlord of the premises that is subject to the complaint shall disclose, in writing, to all tenants of the foreclosed premises that a foreclosure action has been filed.

RLTO 5-12-080(e)

Successor landlord is liable for tenant's security deposit.

RLTO 5-12-030(h)

Sets forth definition of "successor landlord." A court-appointed receiver is not a successor landlord. 

KCRO 5-15-40

 No later than 21 days after a person becomes the owner of a foreclosed rental property, the owner shall make a good faith effort to ascertain the identities and addresses of all tenants of the rental unites in the foreclosed property and notify, in writing, all known tenants of such rental units that, under certain circumstances, the tenant may be eligible for relocation assistance. The notice shall be given in English, Spanish, Polish, and Chinese.

KCRO 5-14-050 For "qualified tenants":

  • The owner of a foreclosed rental property shall pay a one-time relocation assistance fee of $10,600, or
  • The owner must offer an option to renew or extend the tenant's current rental agreement with a capped annual rental rate. 

 KCRO 15-14-020 Defines "qualified tenant":

  • A tenant in a foreclosed rental property on the day that a person becomes the owner of that property; and
  • Is a bona fide lease holder (see definition above).

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Defenses to Evictions

Waiver

A lessor who by any action recognizes the continued existence of a tenancy after the lessor has knowledge of a breach of the lease, waives the right to assert forfeiture of the lease due to that lease violation. Midland Management Co. v. Helgason, 158 Ill.2d 97, 630 N.E. 2d 836 (1994).  Such acts include:

  • Acceptance of rent accruing after the lessor’s knowledge of the breach. Helgason, supra; McGill v. Wire Sales Co. 175 Ill.App. 3d 56, 529 N.E. 2d 682 124 Ill. Dec. 701 (1st. Dist. 1988); Housing Authority for LaSalle v. Little, 64 Ill. App. 3d 149, 380 N.E. 2d 1201, 21 Ill.Dec. 25 (3d Dist. 1978). But see also Schivarelli v. Chicago Transit Auth., 355 Ill. App. 3d 93, 823 N.E.2d 158 (Ill. App. Ct. 2005)(holding that even though the lessor (CTA) accepted rent from plaintiffs, the lessor did not waive its right to enforce a particular section of the lease. The court held that the lessor did not have knowledge of the breach. “For waiver to apply, the lessor must have knowingly waived adherence to the provision.”)
  • Service of a five-day demand for rent. Avdich v. Kleinert, 69 Ill.2d 1, 370 N.E.2d 504 (1977).  A five-day notice reaffirms that the tenancy continues to exist and will only terminate if the tenant does not pay the rent demanded within the five-day period.  This logic may not apply where the lessor issues a ten-day notice and then another ten-day notice, although advocates have still been successful in making the argument. Shelby Hous. Auth. v. Thornell, 144 Ill.App.3d 71, 493 N.E. 2d 1109(5th Dist. 1986) (mailing of subsequent notices did not operate to waive previous notices).
  • Renewal of a lease.

Repair and Deduct

When a landlord has promised in the lease to make needed repairs and does not after a tenant has given landlord notice of conditions and a reasonable amount of time to make repairs, the tenant has three options:

  • Abandon the premises if, due to the landlord’s failure to make repairs, the premises become untenable;
  • Remain in possession and sue the landlord for costs of repairs; or
  • Make repairs and deduct the costs of the repairs from the rent due.

If landlord sues tenant for eviction for nonpayment of rent after tenant makes repairs, the tenant can argue that rent is not owed because of costs of repairs. The Illinois Residential Tenant's Right to Repair Act, 765 ILCS 742/5, allows for rent to be withheld to cover the cost of necessary repairs. However, the tenant must meet the following requirements:

  • The repairs made must be required by the lease agreement or by local law or ordinance;
  • The reasonable cost of repair must not exceed $500, or one half of one month's rent, whichever is less;
  • The tenant must notify the landlord of the intention to make the repairs at the landlord's expense by certified mail;
  • The landlord has 14 days after given notice to repair the issue before the repairs are made;
  • The repairs must be made in a workmanlike manner by a tradesman unrelated to the tenant;
  • After the repairs are made, the tenant must send a copy of the paid bill to the tenant, along with the tradesman's name, address, and telephone number; and
  • The repairs must not be required because of the tenant's fault.

This does not apply to public housing, condominiums, not-for-profit cooperative homes, or owner-occupied dwellings with six or fewer units. Also, if you make repairs, you should be aware that you are responsible for the following:

  • That the repairs are made in a workmanlike manner;
  • That the repairs are made by a licensed tradesman; and
  • That the tradesman is insured for any damages that occur during the repair.

In addition to the Illinois Act, the Chicago ordinance (CRLTO) explicitly authorizes a limited repair and deduct remedy.  Section 5-12-110(c) gives tenants the right to repair and deduct under the following circumstances:

  • There is material noncompliance by the landlord with the rental agreement or with section 5-12-070 in regard to the landlord's responsibility to maintain the premises;
  • The reasonable cost of compliance does not exceed the greater of $500 or one-half the monthly rent;
  • The reasonable cost of compliance does not exceed one month's rent;
  • The tenant gives written notice to the landlord stating the intention to correct the condition at the landlord's expense;
  • If the landlord fails to correct the defect within 14 days after written notice is given, the tenant may have the work done in a workmanlike manner and in compliance with existing law;
  • The tenant must submit to the landlord a paid bill from an appropriate contractor or supplier;
  • The amount deducted from the rent may not exceed reasonable prices customarily charged for such work.

Warranty of Habitability

Illinois does not recognize a tenant’s right to withhold rent as a method to compel lessors to fix defects. Tenants should be warned that it is risky to withhold rent. However, every residential lease includes an implied warranty of habitability. Jack Spring v. Little, 50 Ill.2d 351, 280 N.E.2d 208 (1972). Some leases also contain express warranties of habitability.

Breach of an express or implied warranty of habitability is a defense germane to a forcible entry and detainer action. The tenant is entitled to a rent set-off appropriate to the extent of the lessor’s breach. Glasoe v. Trinkle, 107 Ill.2d 1, 479 N.E.2d 915, 88 Ill.Dec. 895 (1985). The claim may be made by affirmative defense and by counterclaim.

Elements of a claim

The elements of a claim based on breach of the warranty of habitability include:

  • Defects in the premises (these may be shown by failure to maintain the premises in substantial compliance with municipal building codes)
  • Lessor’s knowledge of the defects
  • Lessor’s failure to repair defects
  • Defects would cause a reasonable person to consider the premises unfit, unsanitary, unhealthy or unsafe, but tenant need not establish that the premises are uninhabitable. Pole Realty co. v. Sorrells, 84 Ill.App.2d 178, 417 N.E.2d 1297, 49.Ill.Dec. 283 (1981).
Measure of damages

In Glasoe v. Trinkle, 107 Ill.2d 1, 479 N.E. 2d 915, 88 Ill.Dec. 895(1985), the Illinois Supreme Court approved two alternate methods for assessing damages due to the breach of the warranty of habitability:

  • "percentage reduction in use" method. The rent claimed due by the lessor is set off by the percentage of reduction in use of the premises by the tenant over the period of time the defect existed;
  • "difference in value" method. The rent claimed due by the lessor is set off by the difference in fair value of premises if they had been as warranted versus their value in their defective condition over the period of time the defect existed.

The court may consider the agreed monthly rent as the fair rental value. The lessor and/or the tenant may testify as to his or her opinion of the value of the premises in their defective condition, but expert opinion is advisable. The court should consider the severity of the breach, the duration of the breach, and the effectiveness of the lessor’s attempts to correct defects in determining the amount of rent abatement.

If tenant’s damages exceed the amount of rent due, the tenant has a complete defense, and is entitled to a judgment for the amount in excess of the rent owed. If rent is still due to lessor after appropriate abatement due to breach of the warranty of habitability, the tenant is entitled to a set off, but the lessor may still gain possession of the premises.

Chicago Ordinance Rent Withholding Provision

Some municipal codes, including the CRLTO, allow rent withholding. Under section 5-12-110(d), the following conditions must be met:

  • There is material noncompliance by the landlord with the rental agreement or with section 5-12-070 with respect to the landlord's responsibility to maintain the premises;
  • The tenant notifies the landlord in writing of the tenant's intention to withhold from rent an amount which reasonably reflects the reduced value of the premises due to the material noncompliance;
  • The landlord fails to correct the condition within 14 days after receiving the notice;
  • During the time the failure continues, the tenant may deduct from the rent the amount stated in the notice.

Rental Property Utility Service Act Violations

Tenant Utility Payments

765 ILCS 735 / 1

Tenants may deduct from rent due payments they make for utility services that the landlord was obligated to make but failed to make in order to avoid interruption of service.

Elements for this defense are:

  • lessor’s agreement, written or oral, to pay for water, gas or electricity services
  • lessor’s failure to make payments due for the utility service
  • nonpayment jeopardizes the continuation of service to the tenant, and
  • tenant’s payment for the utility service
Common Area Utilities

765 ILCS 735/1.2

A tenant shall not be required to pay utilities for any common area or other units unless, before entering into lease or taking security deposit, the landlord provides a specific written statement of the arrangement and 12 months of utility bills. The tenant may waive this provision in writing.

765 ILCS 735/1.3

Tenant can recover actual damages from a landlord’s violation and can recover treble damages if the landlord’s action was knowing or intentional. Fees and costs may be awarded if judgment is over $3,000.

Termination of Utility Service by the Landlord

765 ILCS 735/1.4

A landlord may not cause utility service to tenants to be interrupted or terminated by nonpayment of utility bills for which the landlord is responsible or by tampering with equipment.

765 ILCS 735/2.1

If a landlord terminates service in violation of section 1.4, the tenant may recover damages from the landlord of 100% rent abatement for each month and consequential damages, although the tenant must mitigate.  If the landlord showed reckless indifference or willful disregard, each affected resident can get up to $300 or $5,000 divided by the number of such residents, whichever is less.

Retaliatory Eviction

765 ILCS 720 /1

A lessor cannot terminate or refuse to renew a lease or tenancy because the tenant complained to a governmental authority of a bona fide violation of a building code, health ordinance, or similar regulation. Any lease provision to the contrary is void. In Clore v. Fredman, 59 Ill.2d 20, 319 N.E.2d 18 (1974), the Illinois Supreme Court held that retaliatory eviction is a defense germane to a forcible entry and detainer action.

Elements for this defense are:

  • the tenant complained in good faith to a governmental authority (not a newspaper, or some other organization) about potential building code or health ordinance violation(s);
  • the lessor has knowledge of the complaint; and
  • the lessor terminates the tenancy or refuses to renew the lease.

The lessor can rebut the prima facie case of retaliatory eviction by establishing that the eviction was in fact motivated by other reasons. The mere existence of another independent reason to evict is not sufficient. Clore v. Fredman, 319 N.E. 2d at 867.

Chicago Residential Landlord and Tenant Ordinance,

Municipal Code of Chicago, Section 5-12-150

The CRLTO broadens the scope of the retaliatory eviction defense by protecting any of the following types of tenant conduct:

  • complaining of code violations to a governmental agency, elected representative, or public official charged with enforcement of a building or health code
  • complaining of a building or similar code violation or illegal landlord practice to a community organization or the news media
  • seeking the assistance of a community organization or the news media to remedy a code violation or illegal landlord practice
  • requesting that the landlord make repairs to the premises required by a building code or other regulation
  • becoming a member of a tenant's union
  • testifying in court or administrative proceeding concerning the condition of the premises or
  • exercising any right or remedy provided by law

A landlord may not knowingly terminate a tenancy or refuse to renew a lease because the tenant has engaged in one of the forms of protected activity. In an eviction action, if the tenant presents evidence that the tenant engaged in protected conduct within one year prior to the alleged act of retaliation, such evidence creates a rebuttable presumption that the landlord's conduct was retaliatory.

Fair Housing Act Violations

42 USC § 3601 et seq. The Fair Housing Act prohibits various forms of discrimination in a wide variety of housing and real estate practices. Section 3604(a) makes it unlawful to "refuse to sell or rent . . . or otherwise make unavailable or deny, a dwelling because of race, color, religion, sex, familial status, or national origin" or because of handicap, under Section 3604(f). It is also illegal to discriminate in the terms, conditions or privileges of rental property, 42 USC § 3604(b), or to interfere with persons in their exercise of fair housing rights, 42 USC § 3608. Fair Housing Act violations may be appropriate defenses to eviction actions, where the eviction is based on facts that would constitute a violation of the Act.

Eviction due to Familial Status.

Familial status is defined as: one or more individuals under 18 who are domiciled with a parent or other person designated by the parent or other person having custody with the written permission of such parent or other person. 42 USC § 3602(K). Families also include pregnant women, persons in the process of adopting a minor child, and families with foster children. Gorski v. Troy, 929 F. 2d 1183 (7th Cir. 1991). A lessor cannot require a larger security deposit from families with children, or evict a family solely because the family has a child.

Reasonable local, state, or federal regulations on the maximum number of occupants permitted to occupy a dwelling are lawful provided that they do not discriminate against a class protected by the Act.  42 USC § 3607(b).  The Act does not address occupancy standards imposed by private landlords. HUD’s regulations implementing the Fair Housing Act indicate that such standards may be permissible if they are reasonable (e.g., comport with a local building code). 24 C.F.R.§100.10.

Eviction where lessor has failed to make reasonable accommodation for a handicapped person.

42 USC § 3604 (f) (3) (b) specifically requires the lessor to make "reasonable accommodation in rules, policies, practices or services when such accommodations may be necessary to afford (handicapped persons) equal opportunity to use and enjoy a dwelling."

"Handicap" is defined as (1) a physical or mental impairment which substantially limits one or more of such person’s major life activities; (2) a record of having such an impairment; or (3) being regarded as having such an impairment, but such term does not include current, illegal use of or addiction to a controlled substance (as defined in section 102 of the Controlled Substances Act 21 USC § 802).

An accommodation is not reasonable if it imposes "undue financial or administrative burdens."  Se. Cmty. Coll. v. Davis, 442 U.S. 397 (1st Cir. 1979).

Examples of reasonable accommodations include:

  • allowing persons unable to maintain their homes to have homemakers; and
  • setting up rent paying mechanism through third party payees (e.g. banks, social service agencies) to insure that monthly rent payments are made.
Local Ordinances

The Chicago Human Rights Ordinance, Municipal Code of Chicago, Title 2, Chapter 160, prohibits certain forms of discrimination not covered under the federal statutes.  The ordinance provides redress to housing discrimination based on age, marital status, sexual orientation, source of income, and military discharge status. The Cook County Human Rights Ordinance, No. 93-0-13, also covers these types of discrimination.

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Enforcement of Judgment

Lessors must enforce a judgment of possession within 120 days, unless the court grans an extention. 735 ILCS 5 / 9-117

The court must grant the extension unless the defendant establishes:

  • that the tenancy has been reinstated;
  • that the breach upon which the judgment has been issued has been cured or waived;
  • that the plaintiff and defendant entered into a post-judgment agreement whose terms the defendant has performed; or
  • that other legal or equitable grounds exist that bar enforcement of the judgment.

A tenant should notify the sheriff’s office in the event the lessor does not enforce an order within 120 days to make sure that the sheriff refuses to enforce a stale order. The tenant should be sure to wait until the 120 day time period has elapsed.

Waiver After Judgment.

Lessors sometimes accept rent accruing after the judgment of possession is entered.  If such rent is accepted, a new lease is created. The tenant may bring an action to recognize the new tenancy. However, the landlord may accept rent that accrues between the entry of the judgment and the expiration of the stay, if the landlord has obtained the court's approval.

 

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General Practice Tips for Eviction

  • Tell the client to be on time for court and speak up before anyone else if he has defenses. Say "I have a defense!" and make sure the judge hears. A client who is 10 minutes late may already be evicted before he arrives;
  • A judge may allow a 21 day extension to move;
  • If the notice demands full payment of rent and landlord accepts a partial payment, the landlord has not waived the right to evict. If a landlord recovers both rent and possession in a joint action and the client pays the amount owed, the landlord can still evict;
  • Through use of a 5-day notice, the landlord can claim back rent only. Damage to property must be deducted from security deposit or may be claimed in a 10-day notice.

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