In this case our
client rented an apartment in a two-unit building in Evanston from
the owners, who lived in the same building. Unlike in Chicago,
the Evanston Residential Landlord and Tenant Ordinance contains no
exclusion for "owner occupied" buildings.
The Tenant paid all her rent and moved out at the end of her lease,
March 31, 2010. She admitted she broke a mirror, but that was
it. She kept a key for a few days after she moved out because
she wanted to return for a walk-through inspection with the
landlord.
The landlord rejected the Tenant's first lawyer's
written demand for the deposit back. Then the Tenant hired us,
and we filed Tenant's claim.
After the trial the Court awarded the Tenant the
$2,500.00 deposit, plus two times the deposit ($5,000.00), minus the
cost of the broken mirror, for a total slightly over $7,000.00, plus
costs and attorney fees.
The landlord appealed.
The Appellate Court decided that keeping the key was
not a "hold over" tenancy. What matters is whether the tenant
"exhibits" an intent to continue occupying the unit after the lease
termination date. Moving out all her stuff on the 31st made it
clear she had no such intent.
That Court also rejected the landlord's attempt to have his
claims of property damage re-evaluated on appeal.
Finally, although many still do not understand it, the
Appellate Court properly concluded that Tenant was entitled to not
just "twice" her deposit ($5,000.00) but also return of the
$2,500.00 deposit wrongfully withheld, under the Evanston RLTO.
The order from the appellate court is unpublished
pursuant to
Illinois Supreme Court Rule 23, and
so is not precedent. But it is still interesting.
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2012 IL App (1st) 111048U
[**P1] Held:
Where landlord failed to return balance of security deposit to
former tenant along with itemization of damages, award of
treble damages to tenant under city's ordinance
was warranted, and record did not support landlord's claim of
additional damage to the unit; the judgment of the trial court
was affirmed.
* * *
[**P21]
To constitute a "holding over" so as to trigger the landlord's
option for a holdover tenancy, a tenant's continued possession
of the premises upon the lease's expiration must be voluntary
and must give the landlord reason to believe that the tenant
intends to continue occupancy. Hoffman, 352 Ill. App. 3d at
250-52 (discussing Commonwealth Building Corp. v.
Hirschfield, 307 Ill. App. 533, 537-38 (1940)). This court
has expressly declined to
correlate a tenant's retention of a key with his or her desire
to retain possession of a vacated property. Hoopes v.
Prudential Insurance Co. of America, 48 Ill. App. 3d 146, 149-50
(1977). In Hoopes, the landlord argued that the
commercial tenant retained possession by leaving lights on in
the premises after the lease expired, leaving business decals on
the building's exterior, and retaining a key to regain access to
the premises to remove an item from the front door. Hoopes,
48 Ill. App. 3d at 147-48. The appellate court affirmed a
directed verdict for the tenant, noting the tenant's expressed
notice of its intent to vacate the property before the end of
the lease and declining to give great weight to the tenant's
retention of the key. Hoopes, 47 Ill. App. 3d at 151.
[**P22] Here, the report
of proceedings demonstrates that the trial court, relying in
part on Hoopes, rejected defendant's argument that
plaintiff created an extension of her lease by retaining a key
for between four and seven days after the lease's expiration.
According to the testimony of both defendant and his wife,
plaintiff moved out of the unit on March 31 and returned only to
walk through the empty residence and return the key. Plaintiff's
actions did not exhibit an intent to continue occupying the unit
after March 31. Thus, the evidence supported the trial court's
conclusion that no holdover tenancy was created.
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