Withholding Rent in Chicago

The option of withholding rent in Chicago is often overlooked. My clients generally come to me wanting to sue the other side for money, or just terminate their lease. But there’s a third, fairly powerful, option.

Section 5-12-110(d) of the Chicago Residential Landlords and Tenants Ordinance (CRLTO) states that,

“If there is material noncompliance by the landlord with the rental agreement or with Section 5-12-070, the tenant may notify the landlord in writing of the tenant’s intention to withhold from the monthly rent an amount which reasonably reflects the reduced value of the premises due to the material noncompliance. If the landlord fails to correct the condition within 14 days after being notified by the tenant in writing, the tenant may, during the time such failure continues, deduct from the rent the stated amount.”

This Section gives tenants the right to withhold rent for any “material noncompliance” with the lease or Section 5-12-070. Common residential leases usually don’t impose many requirements on landlords when it comes to maintenance, so I recommend looking to the CRLTO. Section 5-12-110 provides a list of violations that qualify as material noncompliance:

“For purposes of this section, material noncompliance with Section 5-12-070 shall include, but is not limited to, any of the following circumstances:Failure to maintain the structural integrity of the building or structure or parts thereof;Failure to maintain floors in compliance with the safe load-bearing requirements of the municipal code;

Failure to comply with applicable requirements of the municipal code for the number, width, construction, location or accessibility of exits;

Failure to maintain exit, stairway, fire escape or directional signs where required by the municipal code;

Failure to provide smoke detectors, sprinkler systems, standpipe systems, fire alarm systems, automatic fire detectors or fire extinguishers where required by the municipal code;

Failure to maintain elevators in compliance with applicable provisions of the municipal code;

Failure to provide or maintain in good working order a flush water closet, lavatory basin, bathtub or shower, or kitchen sink;

Failure to maintain heating facilities or gas-fired appliances in compliance with the requirements of the municipal code;

Failure to provide heat or hot water in such amounts and at such levels and times as required by the municipal code;

Failure to provide hot and cold running water as required by the municipal code;

Failure to provide adequate hall or stairway lighting as required by the municipal code;

Failure to maintain the foundation, exterior walls or exterior roof in sound condition and repair, substantially watertight and protected against rodents;

Failure to maintain floors, interior walls or ceilings in sound condition and good repair;

Failure to maintain windows, exterior doors or basement hatchways in sound condition and repair and substantially tight and to provide locks or security devices as required by the municipal code, including deadlatch locks, deadbolt locks, sash or ventilation locks, and front door windows or peepholes;

Failure to supply screens where required by the municipal code;

Failure to maintain stairways or porches in safe condition and sound repair;

Failure to maintain the basement or cellar in a safe and sanitary condition;

Failure to maintain facilities, equipment or chimneys in safe and sound working condition;

Failure to prevent the accumulation of stagnant water;

Failure to exterminate insects, rodents or other pests;

Failure to supply or maintain facilities for refuse disposal;

Failure to prevent the accumulation of garbage, trash, refuse or debris as required by the municipal code;

Failure to provide adequate light or ventilation as required by the municipal code;

Failure to maintain plumbing facilities, piping, fixtures, appurtenances and appliances in good operating condition and repair;

Failure to provide or maintain electrical systems, circuits, receptacles and devices as required by the municipal code;

Failure to maintain and repair any equipment which the landlord supplies or is required to supply; or

Failure to maintain the dwelling unit and common areas in a fit and habitable condition.”

If you can prove that your landlord falls within one of the above-listed violations, you can send a written notice saying that if the violations are not cured within 14 days, you will start withholding rent. How much exactly? “[A]n amount which reasonably reflects the reduced value of the premises.”

When you write your withholding rent letter, cite the violations that your landlord needs to address, and be specific as to what at your apartment is causing the violations to occur. Then give your landlord 14 days to cure the violations. Send your letter by U.S. Certified Mail with a return receipt (the green card) so you can track it and prove receipt of the letter.

How to Defend Against an Eviction in Chicago

If your landlord filed an eviction against you, you should either hire an attorney, or quickly learn the many procedural tools at your disposal in Chicago’s eviction courts.

To get you started, here’s a list of easy tips that can buy you some time to move out, help you keep your credit record clean, and potentially help you fend off the lawsuit altogether.

File your appearance with a jury demand.

After you file an appearance, at your first court date, fill out a jury demand and transfer order. You can try to negotiate with your landlord first, but if you don’t come to an agreement, present your jury demand to the judge and the case will be transferred to another courtroom. The case will be reassigned to another room, and a new court date will be sent to you a few days later.

Consider filing a counterclaim. 

Unfortunately, you can’t just file any old counterclaim in eviction court. You can only file a “germane” counterclaim, as in germane to the issue of possession. Some examples of germane counterclaims include following:

Retaliatory eviction: read Section 5-12-150 of the CRLTO.

Implied warranty of habitability: Jack Spring v. Little , 50 Ill. 2d 351, 358-59 (1972) (when a tenant is facing eviction for nonpayment of rent, the tenant may assert as an affirmative defense and counterclaim that the landlord’s failure to maintain the premises reduced its val ue by an amount that exceeds the rent due).

Hint: If you can’t file your counterclaim in the eviction claim, go file a separate small claims lawsuit for that action (i.e., security deposit, utilities, conditions issues, etc.).

Know your defenses. 

Counterclaims are limited in eviction court, so it’s good to have a strong defense. There are a number of available defenses. Some of the more common ones include:

Defective notice: the notice was vague, did not state a termination date, or was not properly served.

Premature filing: lawsuit was filed before the expiration of the notice.

Retaliatory eviction

Implied warranty of habitability

Failure to make reasonable accommodations (“If the family includes a person with disabilities,” any decision to terminate the family’s assistance must be “subject to consideration of reasonable accommodation.”  24 C.F.R. § 982.552(c)(2)(iv).).

Waiver: landlord has accepted rent, or otherwise acted in a manner inconsistent with an intent to terminate the lease (i.e., signed a new lease).

Ask for a sealing order. 

It’s difficult to get a lawsuit sealed in eviction court, unless you can get the landlord to agree to a sealing. Of course, to get the landlord to agree, you usually have to give up something. 95% of the time, that something is going to be possession of the apartment, and/or a complete payment of back rent. Don’t hesitate to negotiate though and see what your landlord is willing to give. WARNING: the judge has complete discretion to enter or reject the sealing order, but the recent trend in Chicago is to let agreed sealing orders go through.

The Sheriff usually takes at least four weeks to evict.

Once again, WARNING: this is not a guaranteed time, and nobody should rely entirely on this estimate. That said, the Cook County Sheriff often runs about 4-6 weeks behind on residential evictions, and sometimes even more in the winter.

Guide to Fee Waivers in Chicago’s Circuit Courts

Filing fees can be a large obstacle for many individuals who want to bring a lawsuit in Chicago. Filing fees for small claims cases (below $10,000) can range from $141.00 (below $250.00 total claimed) to $269.00 (above $5,000-$15,000 claim). To serve the opposing party, you’ll also have to pay $60.00 per attempt, or about $75.00 per attempt if you use a special process server.

Recognizing this, the Illinois legislature passed 735 ILCS 5/5-105, which allows individuals enrolled in certain government programs, or individuals who fall below 125% of the federal poverty line, to obtain fee waivers.

The process of obtaining a fee waiver isn’t easy though, so we wanted to put together a quick roadmap to guide you through the process (at least for the Civil, Law and Chancery Divisions at the Daley Center in Chicago…more to come later).

Fee Waiver for Civil Division cases in Chicago (under $30,000)

1. Go to this site and fill out an Illinois Supreme Court approved Application for Waiver of Court Fees.

2. Fill out your Application using your current income information.

a. Include your kids if they are minors (under 18).

b. Include all current income and expenses.

3.  If you’re a defendant (the case is brought against you), complete an appearance

4.  If you’re a plaintiff (you’re bringing the case against someone), complete a cover sheet, summons and complaint.

5. Bring your completed appearance or summons and complaint, along with your completed fee waiver application, to room 1301 of the Daley Center (50 W Washington, Chicago, IL 60602) during court hours. YOU SHOULD BRING 3 COPIES OF EACH FORM.

6. Once approved in room 1301, bring your fee waiver to room 602 to file your appearance or cover sheet, summons and complaint.

7. Plaintiffs should then deliver the summons and complaint to the Sheriff’s office in room 701 so the sheriff can serve the defendant.

Fee Waiver for Law Division cases in Chicago (i.e., over $30,000 dollars)

1. Repeat instructions 1-4 above.

2. Bring your completed Appearance or Summons and Complaint, along with your completed Fee Waiver, to room 2005 of the Daley Center (50 W Washington, Chicago, IL 60602) at 11:00 am. At 11:30 am, the court starts accepting waivers. YOU SHOULD BRING 3 COPIES OF EACH FORM.

3. Once approved in room 2005, bring your fee waiver to room 801 to file your appearance or cover sheet, summons and complaint.

4. Plaintiffs should then deliver the summons and Complaint to the Sheriff’s office in room 701 so the sheriff can serve the defendant.

Fee Waiver for Chancery Division cases in Chicago

1. Repeat instructions 1-4 above.

2. Bring your completed appearance or summons and complaint/petition, along with your completed fee waiver, to room 2304 of the Daley Center (50 W Washington, Chicago, IL 60602). YOU SHOULD BRING 3 COPIES OF EACH FORM.

3. Once approved in room 2304, bring your fee waiver to room 802 to file your appearance or cover sheet, summons and complaint.

4. Plaintiffs should then deliver the summons and complaint/petition to the Sheriff’s office in room 701 so the sheriff can serve the defendant, or send by certified mail (if permitted by law).

Withholding Rent to Make Repairs in Illinois

Bad apartment conditions harm too many Illinois tenants every year. If you’re one of these people, you can probably bring a small claims case to court and win. This could take months though, all while leaving you in an apartment that is almost uninhabitable. Fortunately, there’s a quicker, legal way to fix up your apartment, but it doesn’t come without serious risks.

The Illinois Residential Tenants Right to Repair Act lets you withhold rent and put it towards repairing your apartment. To use the act, you should follow these specific steps:

 

1. Send your landlord, via certified mail, a notice of your intent to withhold rent if your landlord does not make repairs within 14 days. The repairs should address a bona fide housing code violation or a violation of your lease.

 

2. Start gathering estimates from licensed tradesmen (who are unrelated to you) for the main fixes needed in your unit.

 

3. If your landlord has not made the repairs after the 14 days are over, have the tradesmen come out and make repairs.

 

4. After making the repairs, when your next rent check is due, give your landlord the receipt for the repairs and deduct the following:

If your rent is $1,000 or more, you can deduct up to $500.00 per month
If your rent is below $1,000, you can deduct up to 1/2 of your monthly rent

 

There is, as mentioned above, a risk to doing this. Your landlord could file an eviction against you as soon as you start withholding rent. If you’ve done every step above properly, you can defend against the eviction by showing you properly withheld rent, unless you’ve violated other portions of your lease. If you’re in Chicago, you might have a retaliatory eviction counterclaim, which comes with an automatic statutory penalty against your landlord. It’s recommended that you consult or hire an attorney in the case of an eviction.

If you’re low income, call CARPLS for more advice on how to withhold rent.


 

Disclaimer: The information contained in this blog is general in nature and should not be understood as a substitute for personal legal advice. By reading the contents within this blog, you are not entering an attorney-client relationship with the Law Offices of Brian J. Gilbert or any other legal organization.

When to Sue for your Security Deposit

Whether or not you should sue your landlord for your security deposit is a decision that depends on two major factors, the strength of your case, and the amount of the security deposit that was withheld.

Let’s begin with the strength of your case. In Chicago, a landlord has 30 days to send you an itemized statement listing any and all planned deductions from your security deposit, as well as receipts for the repairs and/or replacements. 15 days later (45 days after you left the unit), the landlord must return your deposit, minus any amount he/she properly withholds. Your landlord has the right to make certain deductions, including for unpaid rent or damages to the unit that are beyond normal wear and tear. What’s “wear and tear”? That’s up for the judge to decide, after hearing you or your lawyer’s argument, and your landlord’s as well. If the judge determines the damages aren’t mere wear and tear, then the legitimacy of any deductions will turn on who caused the damages.

Therefore, if two months after you move out, your landlord sends you a check for $200 with a handwritten note explaining why he’s deducting $1,000 from your $1,200 deposit, and there’s no receipts included in the envelope, you at least have the foundation of a strong case. Of course, it may still come down to whether or not you actually caused $1,000 in damages to the unit. You should at all times be ready to prove that you in fact did not cause the damages. For tips on how to do this, read our Security Deposits Tips post.

Even if you have a really strong case, you have to consider whether your expenses in the case will outweigh your potential rewards. The possible expenses, at least at Law Offices of Brian J. Gilbert, include $75 in up front fees and a 30% contingency fee (taken out of any favorable judgment). Filing fees and service fees are generally around $250. The possible rewards, on the other hand, at least in Chicago, can include a judgment for up to two times the amount of your security deposit, plus attorney’s fees and court costs.

If your security deposit was for $400, and your landlord is only withholding $100, it doesn’t make much sense to bring a case. You’re going to pay up to $300 or more just to bring the case, and your greatest reward could only be $200, plus whatever is awarded in attorney’s fees and court costs. This is all assuming you win, and the judge awards you the full statutory damages, attorneys’ fees and court costs. All your landlord has to do, meanwhile, is prove up $100 of damages beyond normal wear and tear.

Now compare this to if your security deposit was for $1,000, and your landlord withheld $900. Now if you win, you get $1,800, plus attorneys’ fees and court costs. The $300 up front payment might now very well be worth the risk considering the much larger reward.

This is just a brief outline of what should be considered in bringing case. That being said, it can assist you in evaluating the merits of your claim and deciding whether or not to hire an attorney.

 


 

Disclaimer: The information contained in this blog is general in nature and should not be understood as a substitute for personal legal advice. By reading the contents within this blog, you are not entering an attorney-client relationship with the Law Offices of Brian J. Gilbert or any other legal organization.

10 Tips for Getting your Security Deposit Back in Illinois

Landlords withhold security deposits for all types of reasons, some legal some not. Tenants will call, email, and even write letters asking for the return of amounts ranging between $250-$1,500, but to no avail. The reason landlords don’t listen: they know you probably won’t take the time or effort to sue them, and they often have a few tricks up their sleeves to make you believe they are validly deducting for unpaid rent or damages (of course some are actually deducting for valid reasons).

Luckily, there are some clear cut ways to make it harder for a landlord to deduct for unpaid rent or damages. These also set you up nicely to win in court, if it comes to that. Some of the main tips are listed below.


 

Move-in & move-out

1. Take pictures of your apartment when  you move-in and move-out.

 

2. Get a receipt for your security deposit payment, or write “security deposit” in the memo line of the check and keep a carbon copy.

 

3. Keep a written lease (signed by you and landlord), and make sure it lists the security deposit amount correctly

 

4. Ask for a walk through when you move out.

 

5. Provide your landlord with a follow up address in writing.

 

6. Check your lease to see when you have to give notice of moving out (some don’t require any). Give this notice at the right time, and then move out by the expiration date on your lease.

 

Post move-out

 

7. Your landlord must send you an itemized statement (i.e., statement listing each deduction separately) with the amount deducted from your security deposit, within 30 days of you moving out.

 

8. The itemized statement must also include receipts of the repairs or replacements for damages you caused (estimates are OK, as long as they supply actual receipts later).

 

9. The damages listed in the statement must not fall under normal “wear and tear.”

 

10. Your actual security deposit must be returned to you within 45 days of the move-out date, unless properly withheld.


Disclaimer: The information contained in this blog is general in nature and should not be understood as a substitute for personal legal advice. By reading the contents within this blog, you are not entering an attorney-client relationship with the Law Offices of Brian J. Gilbert or any other legal organization.

 

How to Evict Someone the Right Way in Illinois

Evicting a tenant is not a very enjoyable process – for either the landlord or the tenant. That being said, there is a right way to do it that makes the entire process easier on each side. Doing it the wrong way, meanwhile, often drags things out much longer than needed, leading to more stress and higher costs.

Here’s our attempt to lay out the right way to evict in the simplest way possible.

1. Talk to your tenant first

Sometimes your tenant may have a valid excuse for breach of lease or nonpayment of rent, and can fix the problem quickly. S/he may also just need a few extra days to find a new place and move their things. While you may not get exactly what you want by simply negotiating with your tenant, you will avoid the hassle of having to initiate a formal eviction process. Remember, bringing a case pro se will likely cost around $350, unless you get a fee waiver. An attorney’s fees will add a couple hundred more onto that, at the least.

2. Serve your tenant with the right notice

You cannot initiate the eviction process without first serving the proper notice on your tenant. Generally speaking, there are three types of notices you should be aware of:

5 day notice – for unpaid rent

10 day notice – for breach of lease

30 day notice – for month-to-month leases

You must give the tenant the amount of time stated in the notice to either correct his/her behavior or move out. If the complete period has passed, you may file your claim in court (wait until the day after the period expires to file).

3. Serving the notice the right way

You also cannot initiate the eviction process without properly serving the notice. To serve your tenant correctly, you should personally hand it to him/her, or to an individual 13 years or older who resides at the unit. You should also keep a copy for yourself, fill out a “Certificate of Service”, and sign it in front of a notary at a local bank or UPS (each notice should have a  “Certificate of Service” section for you to complete at the bottom). If you’re outside of Chicago, there may be additional service methods available (i.e., service by mail or posting), depending on what’s stated in your lease.

4.  Initiating the lawsuit

File a summons and complaint at the district courthouse closest to the property

Serving the summons and complaint on the tenant through the sheriff’s office or a special process server

5. Attending court

If you’ve done everything right up until now, you should be in good shape for trial. You will be able to pick your court date when you file. Make sure to show up on your trial date with all documents necessary to prove you complied with the Forcible Entry and Detainer Act and the terms of your lease. You can try asking for a continuance if you’re not prepared.

 


 

Disclaimer: The information contained in this blog is general in nature and should not be understood as a substitute for personal legal advice. By reading the contents within this blog, you are not entering an attorney-client relationship with the Law Offices of Brian J. Gilbert or any other legal organization.