Thanks for your question.
An implied term in residential rental leases is the warranty of habitability. If the landlord causes the rental to become uninhabitable or fails to make repairs so that the premises are uninhabitable, a constructive eviction may occur. This may allow the tenant to withhold rent, repair the problem and deduct the cost from the rent, or recover damages. Illinois does have a "repair and deduct" law. Unless the landlord agrees to allow a tenant to withhold amounts for repair, the tenant will be behind in rent for doing so. A failure on the landlord's part to correct a problem affecting the habitability of the premises may be cause for termination of the lease.
In general, a warranty of habitability requires landlords to maintain safe and sanitary housing fit for human habitation. The warranty of provides protection against those conditions that materially affect the health and safety of the tenants or those deficiencies that, in the eyes of a reasonable person, deprive a tenant of those essential functions which a residence is expected to provide. "Habitability," for purposes of a landlord's warranty of habitability is not the same as no risk of harm. An apartment can provide adequate shelter and amenities, as promised, and still be a place which presents some risk. This warranty is implied into all leases and generally requires the landlord to deliver livable quarters at the tenancy's inception and to maintain the premises in a habitable condition throughout the term, and conditions the tenant's covenant to pay rent on the habitable condition of the premises. A landlord is required to make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition. To constitute a breach of the warranty, the defect complained of must be shown to be of a nature and kind which will prevent the use of the dwelling for its intended purpose to provide premises fit for habitation by its dwellers. What you have descried to me in your facts is a CLEAR breach of the warranty of habitability.
Factors to be considered in determining whether a condition or defect constitutes an actionable breach of the warranty include: (1) whether the condition violates a housing law, regulation, or ordinance; (2) the nature and seriousness of the defect; (3) the effect of the defect on safety and sanitation; (4) the length of time the condition has persisted; and (5) the age of the structure. A condition which may endanger or materially impair the health or safety and well-being of an occupant (like mold from water damage) is sufficient to violate the warranty of habitability.
Factors aiding a court's determination of the materiality of a landlord's alleged breach of a residential lease include: (1) the seriousness of the claimed defects and their effect on the dwelling's habitability (2) the length of time the defects persist, (3) whether the landlord received written or oral notice of the defects, (4) whether the residence could be made habitable within a reasonable time, and (5) whether the defects resulted from abnormal conduct or use by the tenant. Additionally, to assert a breach of the implied warranty of habitability except where otherwise provided by statute, the tenant must prove that he or she gave notice to the landlord of the defect or condition, that the landlord had a reasonable opportunity to make the necessary repairs, and that he or she failed to do so. 765 ILCS 742-5 Sec. 5.
The botXXXXX XXXXXne here is that I definitely think you have a good case for a partial constructive eviction since you could not use your basement and because the landlord did not make the necessary repairs and has therefore breached the warranty of habitability. You should AT LEAST get part of your rent back fro every month this has been going on, and perhaps more. You can also ask the judge to terminate your lease, if that is something you would like. If you have more questions, please let me know. If not, please don't forget to accept my answer so I can receive credit for helping you. Thanks!
Edited by LADYLAWYER on 4/1/2010 at 3:55 AM EST