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Illinois First District Appellate Court Sanctions Use of Move In Fees For Chicago Leases

Written by Kreisler-Law-PC on . Posted in attorney fees, Chicago Residential Landlord and Tenant Ordinance, holding security deposits, mandatory requirements, minor violation, non-refundable move-in fee, nonpayment of monthly rent, RLTO, tenant's attorney fees

The Chicago Residential Landlord and Tenant Ordinance (“RLTO”) contains many mandatory requirements as to the holding of security deposits by landlords to which the ordinance applies. Any violation of those provisions, even an unintentional or minor violation, comes with a penalty of double the entire security deposit and makes the landlord liable to pay the tenant’s attorney fees for enforcement. Because of this, it has become increasingly common for Chicago landlords to cease the formerly widespread practice of requiring a security deposit, typically in the amount of one month’s rent, for every lease. Many landlords instead are now requiring a non-refundable “move in” fee, usually in the amount of a fraction of a month’s rent.

The recent Illinois First District Appellate Court decision in Steenes v MAC Property Management sanctions the new move-in fee practice. In Steenes, the Appellate Court affirmed a lower court decision that a $350.00 non-refundable move in fee was permissible in the case of a lease providing for rent in the amount of $715.00 per month. The court concluded that the $350.00 fee was “a ‘charge’ made in return for plaintiff’s moving into her unit, which would cover defendants’ resulting expense, time, and the interruption of business related to the move.” The Court’s reasoning was based upon its finding that the “amount of the move-in fee appears inadequate to be considered as security for any nonpayment of monthly rent or secure…” tenant’s performance of the lease terms. Because the move-in fee was expressly made non-refundable, the Court found that the fee could not be considered “as a surety for either unpaid rent or compensation for damage to the apartment” and thus was not a security deposit under RLTO.

Feel free to contact an experienced Illinois landlord law attorney at Kreisler Law if you have questions about how to properly serve eviction notices or any other area of the laws governing landlords and tenants.

When Can a Chicago Landlord Conclude a Tenant Has Abandoned the Apartment

Written by Kreisler-Law-PC on . Posted in abandonment of apartment, Chicago landlords, Chicago Residential Landlord and Tenant Ordinance, landlord attorney, personal property, rental periods, RLTO, tenant's intention

The Chicago Residential Landlord and Tenant Ordinance (RLTO) applies to all non-owner occupied residential rental buildings as well as to owner-occupied buildings of more than six units. RLTO has helpful definitions of when a tenant can be considered to have abandoned his or her apartment. The first situation is simple, where the tenant has given actual notice to the landlord of the tenant’s intention not to return to the unit.

The second definition of abandonment requires three things:
a) That in the case of a tenancy with rental periods of one month or more, all persons entitled to occupy the apartment have been absent for a period of two (2) days or in the case of rental period of less than a month, that all persons have been absent for one rental period;
b) All persons entitled to occupy the unit have removed their personal property from the premises; and
c) Rent for the period is unpaid.

The third situation is which the landlord may conclude there has been abandonment is where all persons entitled to occupy the apartment have been absent for a period of thirty two (32) days and rent for the period is unpaid.

Feel free to contact an experienced Illinois landlord attorney at Kreisler Law if you have questions about RLTO or any other area of the laws governing landlords and tenants.

Appellate Court Confirms Right of Tenant to Attorney Fees in RLTO Counterclaim

Written by Kreisler-Law-PC on . Posted in appellate court, appellate court decision, attorney fees, Chicago Residential Landlord and Tenant Ordinance, counterclaim, court decision, eviction law, eviction law attorney, RLTO

An August, 2015 Illinois Appellate Court decision has confirmed that a Chicago tenant who successfully prosecutes a counterclaim in an eviction action for damages under Chicago’s Residential Landlord and Tenant Ordinance (RLTO) is entitled to an award for the tenant’s attorney fees. The First District Appellate court in Shadid v Sims rejected the landlord’s argument that RLTO only provides for an award of attorney fees where a tenant prevails in a separate action initiated by the plaintiff.

In the Shadid case, the plaintiff landlord had filed what the court characterized as a “garden-variety eviction lawsuit” for non-payment of rent. The tenants counterclaimed alleging various violations of RLTO. After a bench trial, the lower court ruled that the tenant had met their burden of proving a RLTO violation and that they were entitled to a full offset of the rent then owed. The Court then granted the tenants the right to file a Petition for Attorney Fees, which they did, seeking $9,878. The landlord argued that the tenants were not entitled to attorney fees because they were not the plaintiffs; rather they were defendants and counter plaintiffs. The trial court agreed and dismissed the Petition for Attorney Fees. The appellate court reversed the trial court decision and remanded the case to the trial court with instructions to grant the Petition and award the tenants reasonable attorney fees under RLTO.

Feel free to contact an experienced Illinois landlord eviction law attorney at Kreisler Law if you have questions about how to properly serve eviction notices or any other area of the laws governing landlords and tenants.

Cook County Sheriff Expected to Announce Eviction Moratorium During 2015 Christmas Holiday Period

Written by Kreisler-Law-PC on . Posted in Cook County Sheriff's eviction backlog, eviction law, eviction law attorney, holiday moratorium

As has been done in prior years, it is expected that the Cook County Sheriff will soon announce a moratorium on evictions during the last couple of weeks in December. In fact, the Sheriff’s Office is presently stepping up the pace of the evictions it is completing, with the moratorium in mind.

Landlords should note that the present eviction backlog is approximately five weeks. This backlog is likely to increase substantially as a result of the holiday moratorium as well as the Sheriff’s refusal to conduct evictions on unusually cold or snowy days.

Feel free to contact an experienced Illinois landlord eviction law attorney at Kreisler Law if you have questions about how to properly serve eviction notices or any other area of the laws governing landlords and tenants.

Recent Illinois Appellate Decision Shows the Peril to Chicago Landlords of Accepting Security Deposits

Written by Kreisler-Law-PC on . Posted in appellate court decision, Chicago landlords, Chicago Residential Landlord and Tenant Ordinance, Illinois landlord attorney, non-refundable "move-in" fees, RLTO, security deposit, security deposit rules, statute of limitations

The Chicago Residential Landlord and Tenant Ordinance (“RLTO”) contains a series of rules governing the acceptance of security landlords by Chicago landlords. These rules are being strictly enforced by the Courts and are leading many Chicago landlords to discontinue the practice of requiring security deposits from their tenants. Instead, many are now requiring non-refundable “move in” fees.

A recent appellate court decision shows why security deposits are on their way out. In its 2015 decision in Faison v RTFX, the Illinois Appellate Court has now held that the failure to provide a proper receipt for a $10.00 increase in a tenant’s security deposit gave rise to a requirement that the landlord return the entire $600.00 security deposit plus pay a $1,200.00 penalty plus the tenant’s attorney fees. The facts in Faison were that a landlord and tenant entered into a lease in April, 2007, which provided for a security deposit of $590.00. After the initial lease expired, the tenant continued on a month to month basis. The landlord increased the month to month rent from $590.00 to $600.00 in May, 2008 and collected an additional $10.00 security deposit, for which no receipt in the form required by RLTO was given. This happened again in May, 2009. The court held that claims regarding the May, 2008 $10.00 payment were barred by the statute of limitations but ruled that the May, 2009 $10.00 payment was not so barred.

Feel free to contact an experienced Illinois landlord attorney at Kreisler Law if you have questions about the handling of security deposits for properties subject to RLTO or any other area of the laws governing landlords and tenants.

The Special Nature of Illinois Eviction Proceedings

Written by Kreisler-Law-PC on . Posted in anti-trust laws, Chicago Residential Landlord and Tenant Ordinance, eviction law attorney, evictions, Forcible Entry and Detainer Act, Illinois legislature, rental income

Illinois evictions are governed by the Forcible Entry and Detainer Act (the “Act”).  That Act is designed to deal with the termination of the relationship of landlord and tenant and must balance the rights of both landlords, who generally are relying upon the rental income of their properties to pay their mortgages, and tenants, who are using the landlord’s property for their home or business.

 

In balancing the interests of landlords and tenants, the Illinois legislature created an expedited proceeding, focused upon who has the right to possession of the apartment or commercial space.  Because of this, the Act specifically limits issues which may be raised in defense of an eviction proceeding.  Section 106 of the Act specifically provides that “no matters not germane to the distinctive purpose of the proceeding shall be introduced” in defense of the proceeding.

 

The bottom line of the limitation to matters “germane” to the issue of possession is that the Courts have prohibited eviction defendants from raising such issues as a claim that the landlord owes the tenant money for a contract dispute between the parties or that the landlord has violated anti-trust laws.  On the other hand, the Courts have specifically permitted defenses based upon the  habitable condition of residential premises, violation of Chicago’s Residential Landlord and Tenant Ordinance and racial or other discrimination having motivated initiation of the eviction proceeding.

 

Feel free to contact an experienced Illinois landlord eviction law attorney at Kreisler Law if you have questions about how to properly serve eviction notices or any other area of the laws governing landlords and tenants.

Security Deposit Rules for Chicago Landlords

Written by Kreisler-Law-PC on . Posted in Chicago Residential Landlord and Tenant Ordinance, Illinois landlord attorney, non-refundable move-in fee, real estate law, RLTO, security deposit, security deposit rules

The Chicago Residential Landlord and Tenant Ordinance (“RLTO”) applies to all Chicago residential properties in which the owner does not reside or which contain more than six residential units. For landlords who are subject to RLTO, accepting a security deposit means the landlord must literally cross a minefield of possible penalties. The situation is so extreme that it has led a number of Chicago landlords to discontinue the time honored practice of requiring the traditional security deposit in the amount of one month’s rent, in favor of requiring a non-refundable move-in fee usually equal to a fraction of a month’s rent.

The reason for this extreme reaction is that RLTO basically imposes absolute liability in the amount of two times the security deposit, plus the attorney fees of the tenant’s attorney, for violation of each of a variety of technical rules as to the receipt, handling and return of security deposits. The provision of attorney fees for the tenant’s attorney has even given rise to a group of attorneys who make most or all of their income from suing landlords.

The rules are many:

1. Security deposits must be held in a federally insured interest    bearing account in an Illinois financial institution.

2. Security deposits must be in an account completely separate from and not commingled with any funds of the landlord.

3. The name and address of the financial institution holding the deposit must be conspicuously disclosed in the written rental agreement signed by the tenant or if there is not a written rental agreement, by a written notice given to the tenant within 14 days of receipt of the deposit.

4. The tenant must be given a receipt when the deposit is received which specifies the amount of the deposit, the name of the person accepting the deposit, and if that person is an agent, the name of the landlord, the date of receipt and a description of the dwelling unit rented.

5. If a security deposit is retained for more than six months, the landlord must pay interest on the security deposit, at the rate specified by the Chicago Comptroller each year, within 30 days after the end of each anniversary of the beginning of the lease term.

6. When the tenant vacates the dwelling unit, the landlord is required to return the security deposit within 45 days after the tenant has vacated.

The landlord may deduct from the returned deposit any unpaid rent and a reasonable amount to repair damages to the unit. If any amount is deducted for damage, the landlord must deliver to the tenant within 30 days an itemized list of the damages and the estimated or actual costs of repair or replacement. If an estimate is provided, then within 30 days, the landlord must provide copies of paid receipts or if the work is performed by the landlord’s employees, a certification of the actual costs of the repairs.

Feel free to contact an experienced Illinois landlord attorney at Kreisler Law if you have questions about the handling of security deposits for properties subject to RLTO or any other area of the laws governing landlords and tenants.

A Word of Caution for Illinois Landlords – “Actual Possession” Doesn’t Have its Common Sense Meaning in an Illinois Eviction

Written by Kreisler-Law-PC on . Posted in eviction court, Five Day notice, Illinois Eviction Statute, Illinois Forcible Entry and Detainer Act, Real Estate, Termination Notice

Many Illinois landlords have been surprised to learn for the first time when they appear in eviction court that the words of the Illinois Forcible Entry and Detainer Act (the Illinois Eviction Statute) and the Proof of Service sections of common printed forms of tenancy termination forms regarding Service Posting do not, in fact, have their common sense meaning.  Section 5/9-104 of the Illinois Eviction Statute and common published forms provide that notices may be served by “posting the same on the premises” under the situation where “no one is in actual possession of the premises.”

 

Using the common meaning of the terms, many Illinois landlords have concluded that if when they go to serve a Five Day or other notice on the tenant and no one is home, then they can serve the notice by simply tacking it up or “posting” the notice on the front door or entry of the premises.  They proceed to sit out the notice period and then file suit for eviction.  Only when they finally appear before the judge at trial (often five weeks or more after visiting the tenant to serve the notice) do they find out that the Eviction Statute simply does not mean what it appears to say.  Instead, they are informed by the eviction judge that the Illinois Appellate Court has held the real meaning of the Statute in that a Five Day or other termination notice may be served by posting it, only if the tenant has actually moved out.  Service by posting is not good service where the tenant has not actually moved out of the premises, but is avoiding service or is simply not home when the landlord comes to call.

 

Unfortunately, the consequence to the landlord is severe.  His suit for eviction is dismissed, and he must start again from square one, with the service of a new Notice to Terminate the Tenancy.  The only consolation to Cook County landlords is that many of the Cook County eviction judges are willing to provide, in the dismissal order, that the filing fees of a new action, based upon a newly served Termination Notice, are waived.

 

Feel free to contact an experienced Illinois landlord eviction law attorney at Kreisler Law, if you have questions about how to properly serve eviction notices or any other area of the laws governing landlords and tenants.

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