Selected sections from the

Evanston Residential Landlord & Tenant Ordinance

.pdf of whole ERLTO

 

Security Deposit Laws etc. for renters

 

Many Evanston landlords do not abide by the Evanston Residential Landlord & Tenant Ordinance (ERLTO).  To tackle this problem, Evanston's City Council enacted strict penalties for landlords in the form of damages for tenants.  Most of our Evanston clients are students at Northwestern University.  But the ERLTO applies to almost anyone renting in Evanston.  Click on the examples tab above to review some Evanston cases we have handled.

 

5-3-1: TITLE, PURPOSE AND SCOPE:

 

5-3-2: GENERAL DEFINITIONS; PRINCIPLES OF INTERPRETATION:

 

5-3-3-3: PROHIBITED PROVISIONS IN RENTAL AGREEMENTS:

 

5-3-4-3: ACCESS:

 

5-3-5-1: SECURITY DEPOSITS AND PREPAID RENT:

 

5-3-10: ATTACHMENT OF CHAPTER TO RENTAL AGREEMENT:

 

5-3-1: TITLE, PURPOSE AND SCOPE:   back to top

 

(A)Short Title: This chapter shall be known and may be cited as the RESIDENTIAL LANDLORD AND TENANT ORDINANCE.

 

(B)Purpose And Declaration Of Policy: It is the purpose of this chapter and the policy of the city, in order to protect and promote the public health, safety and welfare of the citizens, to establish rights and obligations of the landlord and the tenant in the rental of dwelling units and to encourage the landlord and the tenant to maintain and improve the quality of housing.

 

(C)Construction Of Chapter: This chapter shall be liberally construed and applied to promote its purposes and policies.

 

(D)Scope:

 

1. Territorial Application: This chapter applies to, regulates and determines rights, obligations and remedies under a rental agreement, wherever made, for a dwelling unit located within the city.

2. Exclusions: Unless created to avoid the application of this chapter, the following arrangements are not governed by this chapter:

a. Residence at a public or private medical, geriatric, educational or religious institution;

b. Occupancy under a contract of sale of a dwelling unit if the occupant is the purchaser;

c. Occupancy in a structure operated for the benefit of a social or fraternal organization; or

d. Transient occupancy in a hotel or motel. (Ord. 19-0-75)

e. Occupancy in a cooperative apartment by a shareholder of the cooperative. (Ord. 114-0-89)

 

5-3-2: GENERAL DEFINITIONS; PRINCIPLES OF INTERPRETATION:      back to top

 

(A) Defined: Subject to additional definitions contained in subsequent sections of this chapter:

 

ACTION: Includes recoupment, counterclaim, setoff, suit in equity, and any other proceeding in which rights are determined, including an action for possession.

 

CODE: Includes any ordinance or governmental regulation concerning fitness for habitation, or the construction, maintenance, operation, occupancy, use or appearance of any premises or dwelling unit.

 

COMMON AREA: Includes a part or area of the premises not within any dwelling unit.

 

DWELLING UNIT: A structure or the part of a structure that is used as a home, residence or sleeping place by one or more persons who maintain a household.

 

FAIR RENTAL VALUE: The prevailing value of comparable rental units in the city.

 

LANDLORD: The owner, lessor or sublessor of the dwelling unit or the building of which it is a part. An owner is one or more persons, jointly or severally, in whom is vested all or part of the legal title to property, or all or part of the beneficial ownership and a right to present use and enjoyment of the premises, including a mortgagee in possession.

 

MATERIAL NON-COMPLIANCE: A failure to comply with laws or regulations, including the City of Evanston Residential Landlord-Tenant Ordinance, and the BOCA Property Maintenance Code adopted under Section 5-1-1 of this Title, or the requirements or determinations of a reviewing inspector from the Community Development Department and/or Health Department and/or Fire Department when that failure increases risk to landlord or tenant(s), or adversely affects the rights and welfare of the landlord or tenant(s). A failure to comply may result in termination of the lease. This may include only a single instance of non-compliance if it is substantial or repeated minor violations.

 

PERSON: An individual or a corporation, government, governmental subdivision or agency, business trust, estate, trust, partnership or association or any other legal or commercial entity.

 

PREMISES: A dwelling unit and the structure of which it is a part, and facilities and appurtenances therein, and grounds, areas and facilities held out for the use of tenants.

 

RENT: All payments to be made to the landlord under the rental agreement.

 

RENTAL AGREEMENT: A written agreement and valid rules and regulations adopted under section 5-3-4-2 of this chapter embodying the terms and conditions concerning the use and occupancy of a dwelling unit and premises.

 

TENANT: A person entitled under a rental agreement to occupy a dwelling unit to the exclusion of others. (Ord. 19-0-75; amd. Ord. 97-0-06)

 

(B)Unconscionability: If the court finds the rental agreement, or a settlement in which a party waives or agrees to forego a claim or right under this chapter or under a rental agreement, to have been unconscionable when made, the court may grant the following relief:

 

1. Nonenforcement; or

2. Nonenforcement of the unconscionable provision only; or

3. Limit the application of any provision to avoid an unconscionable result.

 

(C)Notice: A person has notice of a fact if:

 

1. He has actual knowledge of it;

2. He has received notice of it; or

3. From all the facts and circumstances known to him at the time in question, he has reason to know that it exists. A person gives notice to another by taking steps reasonably calculated to inform the other in ordinary course whether or not the other actually comes to know of it.

 

5-3-3-3: PROHIBITED PROVISIONS IN RENTAL AGREEMENTS:     back to top

 

(A) Except as otherwise provided by this chapter, no rental agreement may provide that the tenant or the landlord:

 

1.  Agrees to waive or to forego rights or remedies under this chapter.

2.  Authorizes any person to confess judgment on a claim arising out of the rental agreement.

3.  Agrees to the limitation of any liability of the landlord or tenant arising under law or to indemnify the landlord or tenant for that liability or the costs connected therewith.

 

(B) A provision prohibited by subsection (A) of this section included in a rental agreement is unenforceable. If a landlord deliberately uses a rental agreement containing any provision known by him to be prohibited, the tenant may recover actual damages sustained by him and not more than two (2) months' rent and reasonable attorney fees. (Ord. 19-0-75)

 

5-3-4-3: ACCESS:         back to top

 

(A) The tenant shall not unreasonably withhold consent to the landlord to enter the dwelling unit in order to inspect the premises, make necessary or agreed repairs, decorations, alterations or improvements, supply necessary or agreed services or show the dwelling unit to prospective or actual purchasers, mortgagees, tenants or workmen.

 

(B) The landlord may enter the dwelling unit without consent of the tenant in case of emergency.

 

(C) The landlord shall not abuse the right of access or use it to harass the tenant. Except in cases of emergency, or unless it is impracticable to do so, the landlord shall give the tenant at least two (2) days' notice of his intent to enter and may enter only at reasonable times. (Ord. 19-0-75)

 

[But what happens in case of abuse of access?  This section does not answer that question.  We have to look to another section to find out]

 

5-3-8-2: LANDLORD AND TENANT REMEDIES FOR ABUSE OF ACCESS:

 

(A) If the tenant refuses to allow lawful access, the landlord may obtain injunctive relief to compel access or terminate the rental agreement. In either case, the landlord may recover damages and reasonable attorney fees.

 

(B) If the landlord makes an unlawful entry or a lawful entry in an unreasonable manner or makes repeated demands for entry otherwise lawful, but which have the effect of harassing the tenant, the tenant may obtain injunctive relief to prevent the recurrence of the conduct, or terminate the rental agreement. In each case, the tenant may recover an amount equal to not more than two (2) months' rent or twice the damages sustained by him, whichever is greater, and reasonable attorney fees. (Ord. 19-0-75)

 

5-3-5-1: SECURITY DEPOSITS AND PREPAID RENT:

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(A) A landlord may not demand or receive security or prepaid rent or any combination thereof in an amount in excess of one and one-half (1 1/2) months' rent; provided, however, that rent paid on the first day of the month or upon any other day mutually agreed upon by the parties, due and payable in advance for that month, shall not be construed herein as either security or prepaid rent and therefore shall not be included in the computation of the aforesaid one and one-half (1 1/2) months' rent. The tenant shall pay the landlord, at the time the tenant moves into the premises or at any other time mutually agreed upon by the parties, the amount of the security or prepaid rent required by the landlord. However, if the landlord requires a security deposit or prepaid rent in excess of one month's rent, but not exceeding one and one-half (1 1/2) months' rent, that portion in excess of one month's rent at the election of the tenant, shall be paid either at the time the tenant pays the initial security deposit, or shall be paid in no more than six (6) equal installments no later than six (6) months after the effective date of the lease. Interest on that portion of a security deposit or prepaid rent exceeding one month's rent, if paid in installments, shall not be computed until all installments are paid to the landlord. (Ord. 22-0-89)

 

(B) Effective October 1, 2002, a landlord who receives security or prepaid rent from a tenant shall pay interest to the tenant at the rate equal to the interest rate paid on such security deposits in the city of Chicago. Interest on security deposits on leases commencing prior to October 1, 2002, shall be paid at a rate of four percent (4%) per year through December 31, 1975, and five percent  (5%) per year from January 1, 1976, through September 30, 2002. A landlord shall pay to the tenant interest on all deposits within thirty (30) days after the end of each twelve (12) month rental period, by cash or credit to be applied to the rent due, except when the tenant is in default under the terms of the rental agreement. Interest on that portion of a security deposit or prepaid rent exceeding one month's rent, if paid in installments, shall not be computed until all installments are paid to the landlord. (Ord. 81-0-02)

 

(C) Upon termination of the tenancy, property or money held by the landlord as security or prepaid rent may be applied to the payment of accrued rent and the amount of damages which the landlord has suffered by reason of the tenant's noncompliance with section 5-3-4-1 of this chapter, all as itemized by the landlord in a written notice delivered to the tenant together with the amount due twenty one (21) days after tenant has vacated his unit. Any security or prepaid rent not so applied, and any interest on such security due to the tenant, shall be paid to the tenant within twenty one (21) days after tenant has vacated his unit. In the event the rental agreement terminates pursuant to subsection 5-3-7-4(A)1 of this chapter regarding landlord's wrongful failure to supply essential services, the obligations imposed on the landlord pursuant to this subsection (C) shall be performed within forty eight (48) hours after the expiration of the seven (7) day written notice to the landlord to restore service. (Ord. 97-0-06)

 

(D) A landlord shall hold all security deposits received by him or her in a federally insured interest bearing account in a bank, savings and loan association or other financial institution located in the state of Illinois. A security deposit and interest due thereon shall continue to be the property of the tenant making such deposit, shall not be commingled with the assets of the landlord, and shall not be subject to the claims of any creditor of the landlord or of the landlord's successors in interest, including a foreclosing mortgagee or trustee in bankruptcy.

 

(E) The city shall cause the new rate of security deposit interest to be published once a week for two (2) consecutive weeks in two (2) or more newspapers of general circulation in the city. The city manager shall direct the human relations department to prepare and publish for free public distribution at government offices and libraries, a pamphlet or brochure describing the respective rights, obligations and remedies of landlords and tenants with respect to security deposits, including the new interest rate as well as the interest rate for each of the prior two (2) years. Said pamphlet shall also be available on the city's website. (Ord. 81-0-02)

 

(F) If the landlord fails to comply with subsection (C) of this section, the tenant may recover the property and money due him together with damages in an amount equal to twice the amount wrongfully withheld and reasonable attorney fees.

 

(G) This section does not preclude the landlord or tenant from recovering other damages to which he may be entitled under this chapter. (Ord. 19-0-75; amd. Ord. 81-0-02)

 

5-3-10: ATTACHMENT OF CHAPTER TO RENTAL AGREEMENT:

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 (A)  A current copy of this Ordinance shall be attached to each written rental agreement whether it be a City of Evanston Model Apartment Lease Agreement or a landlord drafted written lease agreement, when any such agreement is initially offered to any tenant or prospective tenant by or on behalf of a landlord and whether such agreement is for a new rental or a renewal thereof. The lessee shall acknowledge receipt of the Ordinance on the executed lease.

 

 (B)  If a tenant in a civil legal proceeding against his landlord establishes that a violation of Section 5-3-10(A) has occurred, he shall be entitled to recover two hundred dollars ($200.00) in damages and reasonable attorney's fees.

 

 (C)  The Model Apartment Lease Agreement ("Agreement"), as amended from time to time, shall be on file with the City Clerk. Each amended Agreement form shall be effective for a minimum of one (1) year. Leases entered into during the effective period of a particular Agreement form shall remain valid notwithstanding amendments made in the Agreement form during the lease term.