Sunday, January 18, 2009

Breaking a Lease in Illinois

More and more since October, 2008, we're getting tenants who need to break their leases because of job transfers, terminations, layoffs, and general financial ruin. For tenants outside Chicago and Oak Park, there's little we can do.

Outside the above-named municipalities, tenants don't have a lot to rely on when hoping to avoid a lease. There is not likely a statutory provision to rely on, except in cases of an imminent threat of violence at the rental dwelling (under the Illinois Safe Homes Act). One option, and it's not a great option, is to see if living conditions are so bad that the tenant can claim "constructive eviction."

CONSTRUCTIVE EVICTION IN ILLINOIS

Don't try this at home. A tenant can claim they are not liable for rent under the remainder of a lease term if they can prove they were “constructively evicted.” That requires showing that they were unable to use the rented premises cannot be used for dwelling; that it’s “untenantable.”

“Untenantability exists when the interference with occupancy is of such a nature that the property cannot be used for the purpose for which it was rented.” JMB Properties Urban Co. v. Paolucci, 237 Ill. App. 3d 563, 566 (3d Dist. 1992).

But a tenant can’t just claim the place became uninhabitable. They’ll have to prove that, and they’ll have to also prove that they moved out and surrendered possession to the landlord within a reasonable time after the condition of untenantability arose. Waiting too long to move out will constitute a waiver of the tenant’s right to raise the constructive eviction defense to the lease.

Illinois cases usually also require the tenant to show that they gave the landlord a reasonable notice of the allegedly untenantable condition and a chance to cure it. Only after giving notice, a chance to cure that the landlord blows, and moving out, can a tenant hope to defend an action for rent by the landlord. Obviously, if the tenant caused the problem, they’re not going to get to avoid the lease because of it.

Who decides whether the place was really uninhabitable, whether reasonable notice and a chance to cure were given the landlord, and if the tenant moved out in a reasonable time? The judge, if it’s a bench trial, or a jury if it’s a jury trial.

The reason we don’t suggest relying on constructive eviction is that it’s very subjective, and often devolves into a tenant’s word vs. landlord’s word argument.

Unless your unit was provably flooded, flattened by a tornado or tsunami, or burned down (through no fault of your own), constructive eviction may not be for you.

2 comments:

Jay Parmar said...

For the private landlord, managing a property can be a busy and demanding job. Advertising the property, arranging viewings, organising the necessary agreements, carrying out inspections, and maintenance all takes time and that's not even including finding the right tenant that you can trust to treat the your property with respect. And with many landlords also working another part or full time job, managing a property can become a full time job in itself. It is for this reason that many landlords with a flat to let choose to use a letting agency to manage their property. They take the weight off the landlord and take responsibility for the management and letting of the property. Visit Evict Squatters for more information.

Michael Smith said...

Yeah, you don't meet with a lawyer while you're there but they notify you that you probably won't meet with a lawyer until your first court date straight from the get-go. delay eviction