Last month, this blog took the opportunity to discuss the procedure by which a landlord can evict a tenant under Illinois and Chicago law, focusing on the various notices that must be provided to perfect the eviction process. Failing to provide proper notice to a tenant of the initiation of eviction proceedings is one of several defenses which can be used to challenge an eviction.
The following is a non-exhaustive list of defenses to eviction actions that every tenant should be aware to protect his or her legal interest in renting property.
Waiver is a legal defense to an eviction based on a breach of a lease provision when the landlord has knowledge of the breach in question and takes action consistent with continuing the tenancy. A landlord that is found to have waived a breach forfeits his right to evict based upon that particular violation of the lease.
A common example of a waiver is when a landlord accepts rent after the due date, thereby waiving his right to declare the lease breached for non-payment of rent. Another example of a waiver might be if a tenant damaged a property but the landlord allowed the tenant to renew the lease upon its expiration.
Repair and Deduct
Under Chicago and Illinois law, landlords are required to make certain repairs to rental properties upon being given notice of a defective condition in the property and a reasonable amount of time to make necessary repairs.
When a landlord fails to make repairs, the tenant may: abandon the premises if the defect makes it uninhabitable; continue to reside at the premises and sue the landlord for costs of repairs; or make repairs himself and deduct the cost from the amount of rent due. If a tenant makes repairs and the landlord later evicts the tenant for non-payment of rent, the tenant may defend on the grounds that rent is not owed due to the cost of the repairs.
The Illinois Residential Tenant’s Right to Repair Act, codified at 765 ILCS 742/5, permits a tenant to withhold rent in order to make repairs when the tenant satisfies the following requirements: (1) the repairs are required by the lease or by local law; (2) the cost of repairs does not exceed the lesser of $500, or half a month’s rent; (3) the tenant has notified the landlord of his or her intent to make the repairs by certified mail; (4) the tenant affords the landlord 14 days after being notified to make the repairs; (5) the repairs are made in a workmanlike manner by a repairman unrelated to the tenant; (6) the tenant sends a copy of the paid bill to the landlord, along with the repairman’s contact information; and (7) repairs are not needed due to some action of the tenant.
The Chicago Residential Landlord Tenant Ordinance (“RLTO”), has a similar repair and deduct provision codified at Section 5-12-110(c).
Warranty of Habitability
Illinois courts have long recognized that every residential lease includes an implied warranty of habitability. Jack Spring v. Little, 50 Ill.2d 351, 280 N.E.2d 208 (1972). The implied warranty of habitability is a guarantee implied by law that by leasing a property, the landlord is promising that the property is suitable to be lived in. A breach of an implied warranty of habitability is a defense to an eviction action that permits the tenant to set-off a portion of rent.
In order to establish a defense based upon a breach of the warranty of habitability, the tenant must show: (1) a defect or defects in the premises that would cause a reasonable person to consider the premises unfit, unsanitary, unhealthy or unsafe; (2) the landlord’s knowledge of the defect(s); and (3) the landlord’s failure to repair the defect(s).
If you have questions regarding the eviction process, defenses to an eviction action, or believe you have been the victim of the unfair practices of a landlord, contact the experienced real estate attorneys at The Slater Firm, Ltd. today.