Recent Changes in the Law for Eviction Defendants in Illinois

Recent Illinois Appellate Court decision are likely going to have a significant impact on the rights eviction court defendants have in asserting counterclaims against their landlords and having their case heard before a jury. The two cases I’m going to discuss are:

Milton v Therra (http://www.illinoiscourts.gov/Opinions/AppellateCourt/2018/1stDistrict/1171392.pdf)

and

Goodwin v Matthews (https://law.justia.com/cases/illinois/court-of-appeals-first-appellate-district/2018/1-17-2141.html)

Milton v Therra

This case arose out of a commercial eviction of a hairdressing studio. The landlord likely performed several illegal lockouts during the course of the litigation. Because of this, the Defendants were awarded damages for a counterclaim for lost profits and the court held the landlord in contempt. Half of the Court’s opinion is about civil contempt proceedings and what procedure is appropriate in that circumstance but the other half is about monetary counterclaims and whether Defendants in eviction proceedings can bring them. Evictions are a limited forum and very few topics are appropriate to raise there outside of questions of possession and back rent owed. The court lists the relevant claims as:

1. claims asserting a paramount right of possession (saying the landlord does not have a greater right to the property, which is rarely argued)

2. claims denying the breach of the agreement vesting possession in the plaintiff (saying that there is no back rent owed or a present lease violation; this is where claims about habitability of the property would be)

3. claims challenging the validity or enforceability of the agreement on which the plaintiff bases the right to possession (saying the lease itself is not legally binding, also pretty rare)

4. claims questioning the plaintiff’s motivation for bringing the action. (this is where a retaliatory claim, which is commonly argued, would fit)

The court held that the Defendants could not be awarded damages based on a monetary counterclaim for lost profits in their eviction proceeding because such a claim is outside the scope of an eviction court’s purview. The claim would need to be brought is a separate proceeding. The court goes on to say the monetary damages for counterclaims are general disallowed in an eviction proceeding. Because this was a commercial eviction, the Court does not address any municipal residential rental ordinances which allow for monetary damages in retaliation and habitability claims, such as the Chicago Residential Landlord Tenant Ordinance (CRLTO). Because such ordinances are not specifically addressed, it is arguable that those counterclaims are still valid. Be prepared for a judge disagreeing with you though, as many are reading Milton as disallowing all monetary counterclaims, period.

Goodwin v Matthews

This case covers a lot of topics, but the one I will discuss here is jury demands and when a court in an eviction proceeding will consider your right to a jury trial waived. Most court proceedings that allow for a jury trial will consider that right waived if the jury demand is not filed close to the beginning of the case. This case asserts what has long been the standard in eviction proceedings: your jury demand is due when you appearance is “first required.” What that means has been open to some interpretation. In my opinion, these are the two scenarios where this ruling matters to defendants in eviction court:

1. If you come to court when you are served and ask for a continuance to get an attorney, it is my opinion that fling a jury demand on or before the next court date is still timely. That is the fact pattern of Pecoraro v. Kesner, 578 N.E.2d 53 (1st Dist. 1991), which I believe is still good law. Be prepared to argue this before the judge because there is some disagreement on this point.

2. If you miss a court date you are served for and file a motion to vacate afterwards, your jury demand will be considered waived. That was not frequently argued before this decision. It will be now. Do not miss your court date!

What to Do

If you are a defendant served for an eviction proceeding, be sure to consult with an attorney before you go to court about your rights and what to expect. These proceedings are fast by statute and it is very important that you don’t compromise your rights or fail to understand what your rights are. Good luck!

Fraudulent Leases

OK, this is a long one, but it’s making me nuts right now. I have seen A BUNCH of fraudulent leases on foreclosed properties recently, where the leasee gets bilked out of a lot of money in good faith with no recourse. The person purporting to be the landlord will have keys to a vacant property and the person walking in has no idea that the person they are speaking to has no right to the property. Do a quick title search when you rent property. You can go to the Cook County Assessor site and do a PIN search http://cookcountyassessor.com/Search/Property-Search.aspx

 Then, take the PIN you get from there and check the Cook County Recorder of Deeds http://cookrecorder.com/

 This will let you know if there is a Lis Pidens (a foreclosure in the works) or if the person you are leasing from actually owns the building. It takes a few minutes and will potentially save you from a horrible fraudulent scam! Love and light, my darlings 

14 Day Letter Requesting Repairs

Hey All-

This is probably my most-asked question, and something all tenants in Chicago can do on their own when they have a landlord who is not making repairs to a tenant’s satisfaction. You need to send what is called a 14 day letter. Send it certified mail (so you can prove a date of receipt) and keep a copy for your records. The below text is what I’ve used before:

To whom it may concern:

My name is _______________, your tenant residing at ___________, in Chicago, IL _______. As I’m sure you are aware, my tenancy is governed by the Chicago Residential Landlord Tenant Ordinance. Pursuant to the aforementioned municipal ordinance sections 5-12-070 and 5-12-110, this serves a written notice of the following conditions, to wit:

(List of conditions here)

You are required to repair these issues within fourteen (14) days of receipt of this notice. If you fail to do so, I may exercise any of the following remedies allowed by law:

1) Repair the issues myself and deduct the amount of repair from the rent (make sure you keep receipts)
2) Withhold rent to reflect the value of the subject property given the damage present (this can be up to $500 or half the rent, whichever is LESS and it must be a REASONABLE amount)
3) Break my lease without penalty

Response to this notice and request for repairs should be made in writing.

Best Regards,

_____________________________

After you see that the letter is received (you can also send it with your rent and the cashing of your rent check will also prove receipt), you need to wait the 14 days to act. After the 14 days are up, send another notice, also certified mail, informing your landlord of the action you intend to take. This will protect you going forward if you landlord takes legal action against you. NEVER JUST STOP PAYING YOUR RENT.

Happy Renting,

Bonnie

Does the sheriff evict in the winter?

Does the Cook County Sheriff evict in the winter? Despite what seems to be the commonly held belief to the contrary, the sheriff absolutely DOES evict in the winter. There is what is called the “moratorium,”  a prohibition on evictions during the holidays, that typically lasts from December 15th through January 2nd. The sheriff will not evict during that time frame. Outside that time frame, the sheriff will not evict if the temperature falls below 15 degrees. If it is a really cold winter, the sheriff will evict far fewer people. If the winter is warm, evictions will proceed as usual after the moratorium is over. Don’t get caught out in the cold thinking that the sheriff won’t evict you in the winter! They absolutely will.