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 PAUL
BERNSTEIN, ESQ., ON CHICAGO TENANTS' RIGHTSBy: Paul Bernstein, Attorney At Law © Paul Bernstein, Esq. 1998, All Rights Reserved Chapter 9: IF YOUR LANDLORD DOES NOT MAINTAIN YOUR APARTMENT In subsequent chapters I will review various parts of Section 5-12-110 of the RLTO. However, in this chapter, I give you an introduction to one of the more interesting and powerful sub-sections. Section 5-12-110 (d) of the RLTO is, in my view, one of the most powerful remedies available to tenants where there is a material failure of the landlord to keep the apartment and the premises of which it is a part in compliance with the Chicago Building Code. At the same time, there are some thorny legal issues under this section for tenants to be aware of. Under this section entitled "Failure to maintain", the tenant may "notify the landlord in writing of the tenant's intention to withhold from the monthly rent an amount which reasonably reflects the reduced value of the premises due to the material noncompliance. If the landlord fails to correct the condition within 14 days after being notified by the tenant in writing, the tenant, may, during the time such failure continues, deduct from the rent the stated amount." This section appears to give tenants a right to make ongoing reductions from the rent until problems with the premises are corrected by the landlord. The "Request For Repairs" should be very specific The first problem a tenant faces in an effort to exercise the tenant's rights under this section is to be certain to prepare a properly drafted, written "Request For Repairs" and to provide the landlord with sufficient details so that the landlord knows, precisely, what conditions the tenant is complaining about. Proving that the landlord actually received the original copy of this notice is the first hurdle for a tenant to overcome. And remember that the landlord has 14 full-days after the receipt of that notice to correct the problems. How to Serve the Request for Repairs Because the landlord is entitled to those 14 full days after the landlord actually receives the written notice, it is imperative to make certain that the notice was received and it is equally important to determine on what date during the month in which service was made – as 14 days is measured after the date of receipt by the landlord. Here’s some details on why this is so very important. Certified mail, return receipt requested may not be good enough Most "Requests For Repairs" are served by way of "Certified Mail, Return Receipt Requested". So, you may send out your mail at the post office and with the little green card attached. You may assume that the letter was received by the landlord in a couple of days and then you might start counting those 14 days. Wrong! Your landlord, knowing that certified mail may be "trouble" may never pick up the certified, return receipt envelope. Accordingly, your landlord may start an eviction proceedings when you start to pay an amount less then the rental originally agreed upon (hereafter called "reduced rent" or the "reduced amount"). Thus, in that the landlord never received the envelope and notice, the landlord will allege a strong defense to your claim and you will very likely be evicted. How, then, should you serve your notice? The very best way to serve your notice is as follows:
Counting the days for delivery of the mail Let’s suppose you do not get back the "green card" from the certified mail, return receipt requested copy of your letter, but you also did send out another copy of the Request For Repairs with a Certificate of Mailing. How do you then determine if the landlord actually got the mail – and remember, a landlord may be on vacation overseas, so in fact, they did not get the mail as soon as we might normally expect delivery by the Post Office? One way is that your landlord may call you to discuss your letter. If the landlord does call, then, in the first place, cooperate with the landlord to assist in the fixing of what needs fixing. However, if your landlord calls just to cuss you out and complain about your demands, make certain that you note the date and exact time of the landlord’s call to you. Another way is, after a couple of days, for you to call your landlord. If your landlord says they got the letter, then, again, so note the date and time of that statement by your landlord to you on a copy of your Request for Repairs. Finally, you might want to "assume’ that your landlord received your mail if it did not come back to you as not deliverable by the post office. Here, the certificate of mailing will assist you, but this last approach is no where near as effective or helpful in a trial before a judge or jury as would be the green card signed by the landlord or your having served the notice personally. When the first reduced rental payment may be made I was the successful tenant’s lawyer in a 1997 and a 1998 decision of the Illinois Appellate Court, copies of which will be on the Internet site where these chapters are also located. One of the issues in the Metroplex v. Powell and Metroplex v. Stovall cases was when the first reduced payment could be made. Generally, rent is due on the first day of each month. Accordingly, if you sent the Request For Repairs to your landlord on November 10th,but the landlord says that the landlord did not get your letter until November 17th, and you made your first reduced rental payment on December 1st, then we have a problem. The problem is that the landlord has 14 full-days after receipt of the request for repairs to do the repairs. In our example, the landlord received your Request For Repairs on November 17th and 14 days thereafter is December 1st. The landlord had until midnight on December 1st to make the repairs, or some of them. Accordingly, when you paid the rent (either personally or via depositing your check or money order in the United States mail), at that moment in time, you had not given your landlord the full 14-days to effect the repairs, and thus, your payment of reduced rent on December 1st was not, according to the cited cases, in accordance with the law. It is therefore very much appropriate for tenants to be very certain about when the notice was received by the landlord and to be certain that the notice is served at the very beginning of the month….let’s say by the 10th or 12th of the month, so that the landlord clearly has 14-full days to make the repairs. Thus, when you make a deduction on the first of the following month, you are certain that the landlord had the full 14 days to effect repairs. How Much Should You Deduct from the rent? The RLTO provides absolutely no guidance as to how to determine the "reduced value of the premises", and I have found no case law in Illinois that gives specific directions on how such reductions in value are to be computed. Accordingly, unless the tenant is very experienced in such matters, I very strongly urge tenants to seek the assistance of a community-based tenant's-rights organization that has a great deal of experience in such matters and so that such organization can work with the tenant in determining what is wrong with the premises and exactly how much reduction in rent is appropriate. Other alternatives might be a real estate appraiser or a real estate broker. Do not rely on "trivial" complaints, even if covered by the RLTO. Hint: The more significant the building code violation, the better for you when you are in court. If you have a hair-line crack in a wall where there is no leaking of water, a Judge will not think that such a violation is very material, but water leaking through your ceiling or the walls of your apartment, or roach infestation or the failure to provide heat in the winter or fire extinguishers where required by the building code is quite significant. Hint: It is wise to be somewhat conservative in your percentage of rent reduction. If the reduction is 10% or under, in my experience, Judges often wonder just how significant the problem is and that perhaps you could have taken a "repair and deduct" approach (covered in another chapter). If you go beyond 50%, then you may be confronted with a response from a landlord’s lawyer or Judge that the property was uninhabitable and that you cannot and should not expect the Court to allow you to remain in the premises and pay no rent or only a modest percentage of the total rent. In my experience, a reduction in the 20% to 50% area, based on the facts of each case, and if properly and fairly documented and done by the tenant in good faith, would be in the ball park. Tenants Need to be Careful when doing "Rent Reduction" It is imperative that the above steps be very carefully taken and with deliberation and careful analysis. Many landlords, reacting wrongfully in the face of such notices (and their failure to make the necessary repairs), initiate eviction actions against tenants who are merely trying to enforce their rights and the purposes and goals of the City of Chicago. Although other sections of the RLTO bar what is called a "retaliatory eviction, nevertheless, the reasonableness of the tenant's actions in paying what is called "reduced rent" are always in issue. In my experience, the eviction Courts in Chicago are ever mindful of how tenants might or could take unfair advantage of the provisions of this sub-section and tend to hold tenants to a very strong showing to sustain ongoing payments of reduced rent and to sustain a defense to an eviction action by the landlord under this section of the RLTO. Readers must be ever mindful of these problems and dispute under subsection (d) of this section of the RLTO and exercise their remedies under this section with all due care. The assistance of a lawyer and a community based organization is strongly recommended before action is taken under this section by a tenant. Paul Bernstein Internet: paulbernstein@yahoo.com Internet Home page: http://members.delphi.com/bernsteinp/
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