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An unpublished order of the Appellate Court came out this year called Foster v. Tucker, 2012 IL App (1st) 111048U.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  It was nice to see this conclusion expressed, even if unpublished.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.

1 comment:

Bianca Pascuchelli said...

The thing about security deposits is that people are afraid of not getting them back. I remember wehn I had to get an apartment rental in Buenos Aires and I had the same fear. I finally decided to do it because I found a company on the internet that did not require people to make a deposit. That made me feel sure about what I was doing, that I was not going to lose money so I rented the place. Everything ended out perfectly and I never had to give my money in advance!