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Evanston Tenant's Case Gets Appealed by Landlord


Sometimes the Tenant does win at the trial, and the Landlord is the one who appeals.


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 also could not persuade the Landlord to return the Tenant's money and a reasonable attorney fee, including what had been paid to the previous lawyer.  Finally we filed Tenant's claim.     After the trial the Court awarded the Tenant the $2,500 deposit, plus two times the deposit ($5,000), minus the cost of the broken mirror, for a total slightly over $7,000, 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.     



Foster v. Tucker 2012 IL App (1st) 111048U      

.pdf of whole order


[**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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