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Renting in Illinois & Chicago
This is Not Legal Advice
The Illinois Court of Appeals
has said there is a "historical disparity between the
bargaining powers of landlord and tenant."
Plambeck v. Greystone Mgmt. & Columbia
Nat'l Trust Co., 281 Ill. App. 3d 260, 266-267
(1st Dist. 1996). Some of the
laws in Illinois and especially Chicago help residential tenants. This gives tenants
some leverage, and
satisfaction, when almost everything else favors landlords.
 I. LEASES & BREAKING THEM:
Except in
DeKalb,
Mount Prospect, and
Oak Park, Illinois apartment leases need not be in writing.
Leases in DeKalb
Mount Prospect and Oak Park
for residential rentals must be in writing. Everywhere
else in Illinois, if a tenant has no written lease, they are
probably renting on a month-to-month basis. This kind of
lease is valid and enforceable. It still requires written
notice to terminate properly.
Even though a written lease is not a prerequisite to renting, a tenant
may prefer a written lease. Verbal rental agreements are enforceable, but unreliable.
Who promised what exactly? It's not clear. Still, a tenant may want no
written lease so they can move out on short notice.
Landlords usually want a written lease so they can bind their
tenants to paying rent for a long term. A written 12-month
lease is a promise by the tenant to pay 12 months of rent.
Landlords might successfully sue tenants for all the rent due
under a written 12-month lease even if the tenant never moved
in. So there are times when signing a written lease is
good, and times when it's bad.
If a tenant breaks a lease improperly, that
tenant is probably on the hook for rent for
the rest of the lease term. Under no circumstances should
a renter rely on a landlord's VERBAL agreement to let the tenant
break the lease. Nor should the tenant give only a VERBAL
30-day notice to terminate a month-to-month rental. This
is true even if the lease itself isn't in writing. If an
agreement to terminate a lease before its natural expiration
date it isn't in writing, the renter is
foolish to rely on it. That unfortunate renter may owe rent and
may get sued. They'll at least jeopardize their security
deposit. A renter can wind up owing rent for months that
the tenant doesn't even live at the property. A
renter might even have to pay the landlord's lawyer fees
after the landlord sues for rent.
See
VG Marina Mgmt.
Corp. v. Wiener,
371 Ill. App. 3d 201 (2nd Dist. 2007).
There are cases where a tenant simply cannot legally terminate
their lease early, no matter how much they need to. Even
in Chicago. Be careful breaking leases. If you can't
do it right, don't do it.
Roommate problems? Tenants cannot escape a lease they signed with roommates just because
some, but not all, tenants
are violating the lease or making the apartment
disgusting. Tenants on a lease are
jointly and severally liable. That
means the landlord can sue any one of the tenants on a lease
for ALL the rent due under the lease. Yes, you may be
responsible for your deadbeat roommate's rent, even if you paid
all of your rent. So be careful who you sign a lease with.
At least in Chicago you may have grounds to
legally
break
the lease and get a fresh start on your own or
with a more responsible roommate. Talk to a Chicago
landlord-tenant or renters-rights attorney about this option.
Some
renters in
Oak Park
have
a defect in their lease that can get them
out of the written lease on 30 days' written notice.
Renters in most of Illinois have no certain means to legally
terminate a lease before its written expiration date.
These tenants' best hope is to negotiate some resolution with
their landlord and commit it to signed writing. The
defense of "constructive eviction" is perhaps an option, but
tough to prove, and unreliable.
II. ARE YOU COVERED BY THE RLTO IN CHICAGO?
TENANTS HOPE SO.
Most apartment, condo, and house rentals in Chicago are covered
by the
RLTO
because the
RLTO
applies to all rental
agreements in the City, written and unwritten,
unless
the rental is subject to some exclusion found under section 020
of the RLTO. That section excludes a number of rentals,
and this discussion touches only on a few of those exclusions.
Tenants are advised to make sure they don't take any action or
inaction in reliance upon the RLTO without consulting an
attorney. It won't turn out well if the RLTO doesn't
apply. The Chicago
RLTO only applies in Chicago; not all of Cook County.
Owner Occupied and Less than 7 Apartments in the Building
The RLTO does not apply to a rental in a
building if
the
owner of the property lives in the building AND
the building has only six units, or fewer.
It does not matter how many of the units are actually being
rented at the time. See
Meyer v. Cohen, 260 Ill. App.
3d 351, 358 (1st Dist. 1993). Also, as we have learned the
hard way, even though a detached coach house on the same
property is not lived in by the owner of the property, if the
owner lives in the main house, the coach house is still
considered "owner occupied" and excluded from coverage under the
RLTO if it has fewer than seven (7) units.
See Berven v.
Marquette Nat'l Bank & Trust No. 14662, 2009 Ill. App.
LEXIS 767 (1st Dist. 2009). Is the result the same if the
whole property has more than seven (7) units, but not the coach
house? Who knows. Somebody will have to take that up
with the court of appeals. However, if there are five (5)
or more units on the whole property, although split between both
buildings, the tenants in both buildings ought to still be
covered by the
Illinois Security Deposit Return Act
even if the RLTO does not apply because an owner lives
there. See
Hoffman v. Altamore, 352
Ill. App. 3d 246, 256 (2d Dist. 2004) ("'residential real
property' for purposes of section 1 of the Security Deposit
Return Act is limited to buildings on the same parcel of
real property").
A single-family home
will be covered by the
RLTO
in Chicago, because
the owner of the rented house does not live in the rented house.
Only the renter lives in the rented house. Same goes for a
single condo unit rented out in a large building. Even if the condo
landlord only owns one unit in the building,
they are covered by the
RLTO.
See
VG Marina Mgmt. Corp. v. Wiener,
378 Ill. App. 3d 887 (2d Dist. 2008).
The Illinois court of
appeals has held that town-homes in a row under the same roof
are
still separate buildings under the RLTO.
Allen v. Lin, 356 Ill. App. 3d
405, 413 (1st Dist. 2005). So if there is a row of five town-homes and
your landlord lives in one, and you rent the one next-door, you
may still be protected by the
RLTO.
On the other hand, if you rent a unit in a duplex, and the owner
lives in the other unit, you are not protected by the RLTO.
But if the building has seven or more units and the landlord
lives in the same building, you are still protected.
Co-op
The RLTO does not apply to a unit rented by a member of a co-op
that holds a proprietary lease. Our office was involved in one
case where the
landlord alleged that a huge building
it managed was a co-op, and
so not covered by the RLTO. The court decided
that this was not true, because the tenants did not own any
shares in the corporation that owned the building. True
holders of "proprietary leases" in a co-op own shares in the
co-op corporation, and the tenants in our case did not own
shares in the "Tenants Association" that held title to the
building.
Monasteries, School Dorms, Hospitals, Transitional Care
Facilities, Not-for-Profit Homes for the Elderly, Asylums
All of the above are not covered by the RLTO. Until the
beginning of 2008, a college dorm was only excused from coverage
by the RLTO if it was owned AND operated by the school. But if you rented at a private
dorm, not owned by the institution, it may still have been covered
by the RLTO. However, city
council amended the RLTO in early 2008 to turn the "and" into an
"or" so that previously covered buildings became
excluded
from RLTO coverage. This amendment probably came at the
desperate request of institutions like Roosevelt and DePaul
Universities, as certain residence hall of theirs were
being sued in class action lawsuits alleging violations of the
RLTO. It is also important
to mention that, even though a not-for-profit home for the
elderly is not covered by the RLTO, if it has 25 or more units
and is not "public housing," it may still be covered by the
Illinois Security Deposit Interest Act and
Security Deposit Return Act.
Hotels, Rooming Houses, Bed & Breakfasts
If you rent at a flophouse-type establishment, and pay rent
daily or weekly, you are not protected by the RLTO until you've
rented there more than 32 days in a row. Then, you might
be covered if you start paying a monthly rent. The RLTO is
unclear about what happens if you keep paying weekly or daily
rent for more than 32 days, and never pay a "monthly rent."
It is our opinion that renters at a hotel or
boardinghouse with 25 or more units who give deposits and stay
more than six months are protected by the
Illinois Security Deposit Interest Act regardless of
whether the RLTO applies or not.
Purchaser or Seller Pursuant to a Real Estate Purchase Contract
Prior to the Transfer of Title
The definition of "real estate purchase contract"
in this section is regrettably open to interpretation.
Does this exclusion encompass to a rent-to-own situation? How
about an option, or a right of first refusal? Unless
there will be a transfer of title, for sure, according to
the written terms of the contract, tenants renting to buy or
holding other options can reasonably argue they do not have a
"real estate purchase contract." Only the courts or City
Council can resolve the ambiguity arising from this exclusion.
Employee of a Landlord Whose Right to Occupancy is Conditional
Upon Employment At the Premises
Tenants who get an apartment because they work on or at the
property are not protected by the RLTO. If you are the
building super, the renter across the hall might be protected by
the RLTO while you aren't. There are situations
we have encountered where tenants have leases and pay
rent, but their rent is discounted on account of work the tenant
does at the building. Coverage of these arrangements by
the RLTO is unknown. Those tenants may argue that their
occupancy is not "conditional upon employment" because, if they
just pay the higher rent amount, their employment doesn't
matter. Only the courts or City Council can answer this.
III. Chicago's RLTO is More Than Just Security Deposit Law
If it applies, there is more to the Chicago
Landlord Tenant Ordinance than just security deposit law.
Chicago law also offers
opportunities to break a
lease, and recover damages for excessive
late fees,
annoying apartment showings, and
retaliatory evictions,
to name just a few common violations.
Forcing a tenant to renew their lease more
than 90 days before it expires, trying to enforce a
lease provision
requiring the tenant to pay the landlord's attorney fees,
threats to lock a tenant
out, failure
to turn over possession at the beginning of the
lease, and failure to
disclose code citations against a building before the
tenant signs a lease all can entitle a tenant to automatic
damages even if the tenant suffered no actual harm. We
have recovered substantial damage
awards for Chicago renters who did not even give security
deposits. Chicago apartment laws are more complicated
than just paying interest and returning the security deposit
within 45 days.
IV.
Application of Tenants' Rights Law Outside Chicago in the Rest
of Illinois
With few local exceptions, Apartment rentals in the rest
of Illinois are governed only by the Illinois Security Deposit
Interest Act and Illinois Security Deposit Return Act.
These Acts are not as generous towards tenants as the local
ordinances in
Chicago,
Evanston,
Mount Prospect,
Oak Park,
DeKalb, and
Urbana.
We have obtained favorable
results for tenants under the Evanston
RLTO which is unique in the state because it requires
security deposits be returned and accounted for within 21 days
after a tenant moves out, even if the withholding is for rent.
The
Illinois Security Deposit
Interest Act only applies to renters of landlords who
own or manage properties with 25 or more units. The
Illinois Security Deposit
Return Act only applies to renters at buildings with
five or more units.
The Illinois
Security Deposit Interest
Act requires that a tenant show their landlord "willfully
failed" to pay interest as required by the Act, or refused.
Proving a compensable violation under either of the Security
Deposit Acts is more complicated than in Chicago.
DepositLaw files many class action cases under these Acts
against large downstate and Cook County suburban landlords of
apartment complexes with hundreds of units.
Under the
Illinois Security Deposit Return Act,
the tenant is only entitled to penalty damages equal to
two-times the amount the landlord withholds if "bad faith" or a
refusal to provide a written statement supplemented by receipts
is proven. This may not be easy. However, a tenant
is entitled to return of their deposit in full if the landlord
claims to have paid outside contractors or vendors to do work on
the apartment but
fails to provide the tenant with copies of
paid receipts within 60 days after the tenant moved
out. Even if this failure was not a refusal, or in bad
faith, the deposit itself must be returned (without penalty
damages or attorney fees for the tenant). If the tenant
can show the failure was a refusal, then the penalty damages and
attorney fees may be awarded. We have helped tenants
draft letters to their landlords in order to prove "refusal."
When renting outside of Chicago, an Illinois tenant needs to
understand that there may be no law governing their security
deposit return except the provisions of their lease, or the
common law.
Also, unlike in Chicago and Oak Park, there is likely no way a
downstate Illinois tenant can legally get out of a long-term
lease. Tenants cannot escape liability under their leases
due to economic hardship, a job transfer, marital discord, or
alleged "mold." A landlord can always accept a tenant's
surrender and voluntarily release a tenant from their lease
obligations, but make sure to get that in WRITING. If a
tenant can really prove that habitability issues render the
apartment or house totally uninhabitable, according to a
competent government agency or licensed inspector, the tenant
may be able to get out of a lease by claiming "constructive
eviction." This is not easy though.
Renters outside Chicago in Illinois are protected by a
watered-down version of the RLTO provisions allowing for
rent-withholding when a tenant has to make repairs the landlord
ought to. The
Illinois Residential Tenants' Right to
Repair Act does not let tenants break leases, but may
allow them to withhold from rent up to $500 or half the monthly
rent, whichever is less, for payments the tenant makes to
contractors to fix problems that are the landlord's
responsibility. But this is allowed only after the tenant
has written the landlord a certified letter (return receipt)
informing the landlord of the problems and giving the landlord
at least 14 days to fix the problems themselves. Obviously
the tenant cannot exercise this right if the tenant caused the
damage.
The Illinois
Safe Homes Act does also
provide that a tenant may be able to avoid liability under the
remainder of a lease if they moved out under a "credible
imminent threat of domestic or sexual violence at the premises;
and (2) the tenant gave written notice to the landlord prior to
or within 3 days of vacating the premises that the reason for
vacating the premises was because of a credible imminent threat
of domestic or sexual violence against the tenant or a member of
the tenant's household." What's a "credible imminent
threat"? It's up to the judge or jury.
Finally, downstate renters have some protection against
retaliatory evictions or refusals to renew leases under the
Illinois
Retaliatory
Eviction Act.
If a tenant has exercised their rights under state law or
complained to a government agency about the landlord, or
PROPERLY withheld rent under the Right to Repair Act, then the
tenant may have a defense to eviction. This is only if the
tenant is current on rent and not otherwise in breach of their
lease.
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