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Ask LADYLAWYER Your Own Question
Category: Legal
Satisfied Customers: 6536
Experience:  Civil; Family; HOA; Landlord/Tenant; Real Estate; Probate; Insurance; Immigration; Wills & Trusts
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We are renting a house in Chicago, IL. The house is a 3 level

Customer Question

We are renting a house in Chicago, IL. The house is a 3 level home. The rent is $3,000 per month. The lower of the house is a full finished basement. The second week after moving in, the entire basement flooded. There was major water damage to the carpet, dry wall, trim, and doors. Later on this became a mold issue. The owner was informed immediately. He didn't take the proper action to deal with the problem accordingly. Since then, until now, 7 months later the basement remains completely unsafe and unavailable for the family to use and enjoy. We have continued paying the rent in full for the last 7 months. On several occasions we have contacted the owner and asked him to speed up the process and asked him for partial refund from the rent for the past 7 months. He has refused, so I decided to file a small claim against him in the court for $1,000 per month for the last 6 months. Do we have a good case? Do you have any advice? Should we have an attorney represent us?
Submitted: 7 years ago.
Category: Legal
Expert:  LADYLAWYER replied 7 years ago.



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
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Customer: replied 7 years ago.
Tomorrow is April 1st, the rent of $3,000 is due by the 5th. We usually make the payment on the 1st. Our court date is April 5th, but it could be delayed. If we don't make the payment, because we believe he owes us some money, (the rent is $3,000 and we're suing him for $6,000 - $1,000 per month for unrepaired basement) will that cause a problem for us or complicate the situation.
Expert:  LADYLAWYER replied 7 years ago.



At this point, I don't think it is going to matter too much if you withhold it. If you can get the court registry to accept the money, that would be the best thing to do. Usually, you need a court order for that, but some courts will take it. That way, it is like an "escrow" account and it shows good faith on your part. If not, just make sure you have the money available and can show the judge you have not withheld it simply because you don't have it. Take in a print out of your bank statement.

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Customer: replied 7 years ago.

Hi, I went to court on Monday April 5th, the landlord was represented by a lawyer and they asked for continuance. They told the judge they are planning to file a counter claim against me for $20,000. The judge advised me to get an attorney and posponed the court day till May 10th .

I met with 2 different attorneys here in town. The first one told me very much i don't have case and i'm lucky if i get anything. He will try to get me one or 2 months rent free. he said that based on the fact that i countinued living in the huose in the condition that i know of water damage and mold. And since i chose not to move out then i can't sue him for that.I had the right to break the lease and move out but i didn't. He will charge small amount for his service trying to get this case settled without a hearing.

The secong lawyer told me, i should drop the current lawsuit and hire him or any other attorney for making the suit for large amount. He thinks i should sue him for the whole amount of the lease (12 months X 3,000), moving expenses, medical bills, and compensation for the hardship that we suffered for the last 7 months. He suggests i should sue him for around $50,000 at least. He made me feel that he feels very strong and confident in his claim but he will be charging me an hourly rate of $250 and he thinks it will be few months before the case reachs the final decision .

Can u please give me the best advice. Do u agree with the first lawyer theory? Or the second lawyer's argument? or u think he is just exaggrating the claim to get more money from me??

And do i have the right now to ask for the lease to be terminated?? Thanks.

Expert:  LADYLAWYER replied 7 years ago.



I feel that the first lawyer was more on point with the law and the second one, while he may eventually wear down the landlord and just force him to settle, he will probably cost you an arm and a leg in the long run. If he would take it on contingency, I would say go for it, but otherwise, I am a bit leery of his intensions. You definitely should ask for the judge to acknowledge that you can break the lease. As for the counter-claim--I think that is just a scare-tactic to try to get you to drop the case. Did the attorney make mention of the grounds on which they were going to file the counter-claim? Or is there any breach of the lease on your part?