Eviction Training Part One: Eviction Basics/Substantive Law 1 April 13, 2016

Transcription

1 Eviction Training Part One: Eviction Basics/Substantive Law 1 April 13, 2016 Matthew Hulstein, CVLS Staff Attorney mhulstein@cvls.org; Direct Line: The central purpose of eviction is who has the superior right to possession. For landlord/tenant, the lease is what gives the tenant the right to possession. The owner must properly terminate that lease to have the right to gain possession. An owner can only dispossess a tenant through a court proceeding. Various laws overlay this dynamic with numerous procedures and protections. I. Sources of Law: Almost all housing laws are enacted to protect tenants: they are a floor, not a ceiling for protections and very rarely conflict. There may be several laws and programs covering the same tenancy. a. Federal i. Federal Housing Programs (come to Part Three!) ii. VAWA: 42 USC 1437f(c)(9) iii. Fair Housing Act: 42 USC 3604 iv. Rehabilitation Act: 29 USC 794 v. ADA: 42 USC b. State i. Forcible Detainer Act: 735 ILCS 5/9-101 ii. Security Deposit Return Act/Interest Act: 765 ILCS 710, 715 iii. Safe Homes Act: 765 ILCS 750 iv. Retaliatory Eviction Act: 765 ILCS 720/1 v. Others: Utilities, mobile homes, human rights, tenants in foreclosure, etc. c. Local i. Chicago Residential Landlord Tenant Ordinance ( RLTO ): Chicago Muni. Code, title 5, Ch. 12 (5-12-(section number)). ii. Chicago Building Code/Bed Bug Ordinance: , iii. Others: Fair housing, tenants in foreclosure, etc. II. Forcible Act and RLTO Protections: a. Forcible Act i. Exclusive means of gaining possession. Lockouts illegal: 5/9-101 ii. Notices: 5/9 Part 2. iii. Court procedure: 5/9 Part 1. 1 This short outline is adapted from Atty. Lawrence Wood s January (date) outline, published on ILAO s website. Atty. Wood is the Director of LAF s Housing Law Practice Group. Our thanks go to him for his excellent work.

2 b. RLTO i. Purpose: Protect Tenants. Should be liberally construed. Lawrence v. Regent Realty Group, Inc. 307 Ill. App. 3d 155, 160 (1st Dist., 1999). ii. Applicability: Every unit in Chicago except those in Associations 2. Buildings where owner lives in building and six units or less 3. Prohibition against lock outs still applies iii. Access: and 060 iv. Security deposits: No co-mingling 2. Interest 3. Return 4. Statutory damages v. Maintain premises: Repair and deduct 2. Withholding 3. Claim/Defense vi. Provide essential services: Heat, running water. hot water, electric, gas, plumbing 2. Remedies: Pay and deduct, move out, terminate lease, claim/defense vii. Cure lease violations: viii. Abandonment: ix. Notice of nonrenewal: x. Prohibited lease terms: xi. Retaliation: Presumption of retaliation if adverse action taken within one year of tenant engaging in protected activity. 2. Landlord could overcome presumption by showing legitimate reason for action 3. Statutory damages xii. Lockouts: xiii. RLTO Summary: xiv. Attorneys fees: III. IV. The Lease a. Term: Year, month to month, etc. b. Oral/written c. Modifying lease through behavior d. Prohibited lease provisions: i. RLTO: ii. If subsidized, check applicable HUD regulations. Terminating the Lease: Termination Notices

3 A written termination notice is usually required unless the lease expires on a certain date and the landlord opts not to renew or the lease does not require written notice and is not covered by a law that would otherwise require it. a. Content: i. Describe premises ii. What tenant did wrong iii. Termination/cure period (5-day, 10-day, etc.) iv. Misc.: Look to lease and program: right to request a hearing/grievance? Cure period? Inform of ability to go to court and prove defense? v. Signed by landlord vi. Often contains service affidavit, but not necessary. Just helps landlord prove up case at trial. b. Types: Regardless of the grounds for termination, the notice must at lease comply with the lease. If the lease offers less protection than the legal requirements (below), those standards will apply. If the lease offers more, the lease will control. i. 5-day: Rent: 5/ Calculating rent owed: a. Federal programs: Only rent. No late charges can be included. (See regulations for particular program.) b. Unassisted tenancies: Can include extra charges. Amer. Mgmt. Consultant v. Carter, 392 Ill. App. 3d 39, (3d Dist., 2009). Try arguing rent is defined in lease. Could argue that failure to pay other charges requires a 10 day. c. Failure to cite correct amount will not be a defense if tender of correct amount was not attempted. Elizondo v. Medina, 100 Ill. App. 3d 718, 721 (1st Dist. 1981) 2. Tender: a. Must pay the entire amount due. Elizondo v. Medina, 100 Ill. App. 3d 718, 721 (1st Dist. 1981); 735 ILCS 5/209. b. If notice expires, Forcible Act says can still accept the rent and not revive the lease (5/9-209) but RLTO says will revive lease (g). RLTO supersedes if controls. ii. 10-day: Other conduct (b); 5/ If covered my RLTO or lease has cure provision, must inform tenant of right to cure within that time. iii. 14-day: Public housing. 24 CFR 966.4(1)(3)(i)(A). Must also inform tenant of right to request grievance hearing (if applicable). iv. 30-day: Terminate mo-to-mo. No lease violation necessary (unless certain types of Federal programs). 5/9-207

4 c. Specificity i. Rent: Must include amount owed and the date by which it is due. ii. Conduct: Must know what tenant did wrong and how it violated the lease agreement. iii. Check HUD regulations for assisted tenancies. d. Manner of service: 5/9-211, 24 CFR (HUD tenancies) i. Tenant residing at apartment: Attempt personal service and mailing. Might be able to slip under door. ii. Tenant potentially abandon s apartment: Mail and posting. iii. Will tenant s receipt of notice moot any claims notice wasn t properly served? Compare the Bell and Carter cases: Prairie Mgmt. Corp. v. Bell, 289 Ill. App. 3d 746, 752 (1st Dist. 1997) (Yes); American Mgmt. Consultant v. Carter, 392 Ill. App. 3d 39, 55 (1st Dist. 2009) (No). e. Calculating time notice expires: If plaintiff files case before the notice expires, the case is premature and should be dismissed. i. Use statute on statutes. 5 ILCS 70/1.11. Clock starts ticking the day after the notice was served and expires on midnight on last day of notice period. If last day falls on weekend or holiday, period ends on next business day. ii. If notice includes specific date that is not the actual date when notice expires, then could be facially invalid regardless of tenant not attempting to cure within that time. iii. If using certified mail, considered served when the letter is actually delivered. V. Defenses/Counterclaims: A prima facie case in eviction usually includes the following: Landlord is owner/agent of owner of property, parties had a lease, landlord properly terminated the lease, tenant is still in possession. If the landlord is alleging a lease violation as ground for termination, the landlord will also have to prove the violation. An argument that the landlord cannot meet its prima facie case isn t really a defense. A defense usually requires evidence outside of the plaintiff s prima facie case that will defeat its claim. Any defenses or counterclaims must be germane. 5/ What is germane? Read Spanish Court Two Condo. Assoc. v. Carlson, 979 N.E.2d 891, 896 (2d Dist. 2012). a. Cure. Be sure tenant has the right to cure the alleged violation, either under the lease or the law. If landlord is claiming the criminal activity of anyone other than the tenant as the violation, might

5 be able to cure by removing that person from the household. Could also claim landlord s failure to discuss violation with the tenant frustrated the tenant s ability to cure. b. Habitability: Can affect the tenancy in three ways: i. Reducing the value of the rental property to offset the claimed rent owed ii. Offsetting claimed rent owed iii. Counterclaim iv. Common law: Jack Spring v. Little, 50 Ill. 2d 351, (1972); Ordinance: (e). c. Fair Housing/Reasonable Accommodation Occurs when tenant is disabled, disability is related to the eviction, tenant requests reasonable accommodation, and landlord unreasonably denies it. This is its own area of law. Contact CVLS if you believe you might have a fair housing issue. d. Waiver: It has long been established that any act of a landlord which affirms the existence of a lease and recognizes a tenant as his lessee after the landlord has knowledge of a breach of lease results in the landlord's waiving his right to forfeiture of the lease. Midland Mgmt. Co. v. Helgason, 158 Ill. 2d 98, 102 (1994). i. Acts that might cause waiver (not exhaustive!) 1. Acceptance of rent 2. Holding money order 3. Executing new lease 4. Perhaps second termination notice ii. Acts that won t cause waiver 1. Accepting subsidy payments 2. Recertifying subsidized tenant 3. Any acts landlord is required to perform (maintenance, notice on interest for security deposits, etc.) e. Retaliatory eviction: 65 ILCS 720;