Sunday, November 25, 2012

New Evanston security deposit return case in 2012

An unpublished order of the Appellate Court came out this year called Foster v. Tucker, 2012 IL App (1st) 111048U.  It affirmed the trial court's ruling that the landlord violated the Evanston Landlord Tenant Ordinance (ERLTO) by failing to return or account for a security deposit within 21 days after the tenant moved out.

There are two points the Appellate Court discussed that might have been worth mentioning in a published opinion.

First, the Appellate Court affirmed that:

"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."  P1.

Sometimes courts have questioned the "twice the amount" penalty damages under the ERLTO.  The Foster Court says the tenant getting back their actual security deposit is not half of the double-deposit-sized penalty damages.  It is separate, so the award is truly "treble damages."  It was nice to see this conclusion expressed, even if unpublished.

Second, the Court discussed the question of holdover tenancy.  This is an issue that most tenants bringing a security deposit claim will have to face.  Confronted with a tenant's suit, many landlords resort to anything they can think of as a counter claim.  One favorite is to allege that the tenant was a hold over tenant, and owes rent for an extra month after they moved out.  Why?  Often because the tenant did not move out on or before the last day of their lease.  In this case the tenant did move out but did not return the keys to the apartment until several days later.

The Appellate Court said:

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."  P22.

We cannot count the number of times a landlord has claimed that the tenant "held over" by leaving some furniture or garbage, or not returning the key, or moving out a few days after the last day of their lease.  The
Foster case cannot be cited as precedent, pursuant to Illinois Supreme Court Rule 23.  But it still is worth reading if you deal with residential tenancies in Cook County.

What to know about Vacation Rentals in Chicago

There are a lot of websites now that let individual condo owners rent out their units like hotel rooms, by the night.  In fact, even tenants who are already renting a condo or apartment have been found online trying to rent out their units to someone else at a profit.  Where do they stay in the mean-time?  Maybe with parents.

If you are coming to Chicago and want to opt for a "vacation rental" instead of a traditional hotel, keep the following in mind:

(1)  Your occupancy will not be protected by the Chicago Residential Landlord and Tenant Ordinance unless your total stay is for 32 or more consecutive nights.

(2)  Because your stay will not be protected by that local ordinance, the "RLTO", you will have very little recourse against the landlord for their failure to live up to their end of the agreement.  Sure you can sue them for breach of a contract, but that means you pay your own lawyer fees and the most the landlord can probably lose is whatever you already paid them.

(3)  Also because you will not be protected by the RLTO, you are at risk of losing your "reservation deposit" or whatever else the up-front money you paid was called.  Some of the services that connect vacation renters with vacation landlords do offer a kind of guarantee that protects your deposit up to a certain amount, like $1,000.

(4)  As mentioned above, we are aware that some of the people posing as a vacation landlord on the internet are not actually the owners of the proposed vacation rental unit.  They may not be allowed to be renting it out to you.  They might not even be renting the unit, but somehow are able to get you into it and take your money!  You cannot protect yourself completely but some resources that a prospective renter can rely on include the Cook County Assessor website, which can be used to find the property identification number (PIN) for the unit or building they might rent.  The PIN can be plugged into a search on the Cook County Recorder of Deeds website, which can let you know the title holder of record (owner). 

(5)  Finally, remember, your vacation condo landlord might not have paid their mortgage, or condominium assessments, and that may result in an unwelcome surprise during your stay.  The good news is that nothing moves particularly fast in the court system, and we are not suggesting that the sheriff will interrupt your vacation to remove you from the premises.  But, while the RLTO requires that any landlord disclose a pending foreclosure to a prospective tenant before an agreement is entered into, your putative vacation landlord doesn't have to.  The virtual absence of this risk is probably why vacation rentals are cheaper than staying at a real hotel.