Can a tenant legally withhold rent for repairs in Illinois?
Full Question:
Answer:
Water damage mitigation is something that must be dealt with quickly and effectively. Most home insurance policies not only cover the cost of water damage mitigation, but also require the policyholder to take the necessary steps to prevent secondary damages. If the insurer inspected the damage, they may not have taken proper measures to repair the damage. The EPA says, "Stop the water leak quickly and begin restoration during the first 24 hours. It is important to dry water damaged areas and items within 24-48 hours to prevent mold growth".
Any person who claims damages as a result of an alleged wrongful act on the part of another has a duty under the law to "mitigate" those damages, which means a person needs to take advantage of any reasonable opportunity that may have existed under the circumstances to reduce or minimize the loss or damage. If a jury finds from a preponderance of the evidence that the Plaintiff [within the limitations of any damage sustained] failed to seek out or take advantage of a repair opportunity that was reasonably available under all the circumstances shown by the evidence, then the jury should reduce the amount of the Plaintiff's damages by the amount that could have been reasonably expected if the Plaintiff had taken advantage of such opportunity.
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. A failure to supply hot water is a breach of the implied warranty of habitability when not caused by any fault on the tenat's part..
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.
The warranty of habitability is not intended to make the landlord a guarantor of every amenity customarily rendered in the landlord-tenant relationship, but only 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.
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.
Lack of hot water or heating may constitute a breach of the warranty of habitability.
A condition which may endanger or materially impair the health or safety and well-being of an occupant 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.
For further discussion, please see:
http://rmtd.mt.gov/aboutus/files/water_damage.pdf
http://www.epa.gov/mold/moldcourse/chapter4/
Please see the following IL statutes to determine applicability:
(765 ILCS 742/5)
Sec. 5. Repair; deduction from rent. If a repair is required under a residential lease agreement or required under a law, administrative rule, or local ordinance or regulation, and the reasonable cost of the repair does not exceed the lesser of $500 or one‑half of the monthly rent, the tenant may notify the landlord in writing by registered or certified mail or other restricted delivery service to the address of the landlord or an agent of the landlord as indicated on the lease agreement; if an address is not listed, the tenant may send notice to the landlord's last known address of the tenant's intention to have the repair made at the landlord's expense. If the landlord fails to make the repair within 14 days after being notified by the tenant as provided above or more promptly as conditions require in the case of an emergency, the tenant may have the repair made in a workmanlike manner and in compliance with the appropriate law, administrative rule, or local ordinance or regulation. Emergencies include conditions that will cause irreparable harm to the apartment or any fixture attached to the apartment if not immediately repaired or any condition that poses an immediate threat to the health or safety of any occupant of the dwelling or any common area. After submitting to the landlord a paid bill from an appropriate tradesman or supplier unrelated to the tenant, the tenant may deduct from his or her rent the amount of the bill, not to exceed the limits specified by this Section and not to exceed the reasonable price then customarily charged for the repair. If not clearly indicated on the bill submitted by the tenant, the tenant shall also provide to the landlord in writing, at the time of the submission of the bill, the name, address, and telephone number for the tradesman or supplier that provided the repair services. A tenant may not repair at the landlord's expense if the condition was caused by the deliberate or negligent act or omission of the tenant, a member of the tenant's family, or another person on the premises with the tenant's consent.
(Source: P.A. 93‑891, eff. 1‑1‑05.)
(765 ILCS 742/10)
Sec. 10. Exceptions.
(a) This Act does not apply to public housing as defined in Section 3(b) of the United States Housing Act of 1937, as amended from time to time, and any successor Act.
(b) This Act does not apply to condominiums.
(c) This Act does not apply to not‑for‑profit corporations organized for the purpose of residential cooperative housing.
(d) This Act does not apply to tenancies other than residential tenancies.
(e) This Act does not apply to owner‑occupied rental property containing 6 or fewer dwelling units.
(f) This Act does not apply to any dwelling unit that is subject to the Mobile Home Landlord and Tenant Rights Act.
(Source: P.A. 93‑891, eff. 1‑1‑05.)
(765 ILCS 742/15)
Sec. 15. Tenant liabilities and responsibilities. The tenant is responsible for ensuring that:
(1) the repairs are performed in a workmanlike manner
in compliance with the appropriate law, administrative rule, or local ordinance or regulation;
(2) the tradesman or supplier that is hired by the
tenant to perform the repairs holds the appropriate valid license or certificate required by State or municipal law to make the repair; and
(3) the tradesman or supplier is adequately insured
to cover any bodily harm or property damage that is caused by the negligence or substandard performance of the repairs by the tradesman or supplier.
The tenant is responsible for any damages to the premises caused by a tradesman or supplier hired by the tenant. A tenant shall not be entitled to exercise the remedies provided for in this Act if the tenant does not comply with the requirements of this Section.
(Source: P.A. 93‑891, eff. 1‑1‑05.)
(765 ILCS 742/20)
Sec. 20. Defense to eviction. A tenant may not assert as a defense to an action for rent or eviction that rent was withheld under this Act unless the tenant meets all the requirements provided for in this Act.
(Source: P.A. 93‑891, eff. 1‑1‑05.)
(765 ILCS 742/25)
Sec. 25. Mechanics lien laws. For purposes of mechanics lien laws, repairs performed or materials furnished pursuant to this Act shall not be construed as having been performed or furnished pursuant to authority of or with permission of the landlord.
(Source: P.A. 93‑891, eff. 1‑1‑05.)
(765 ILCS 742/30)
Sec. 30. Home rule. A home rule unit may not regulate residential lease agreements in a manner that diminishes the rights of tenants under this Act. This Section is a limitation under subsection (i) of Section 6 of Article VII of the Illinois Constitution on the concurrent exercise by home rule units of powers and functions exercised by the State.
(Source: P.A. 93‑891, eff. 1‑1‑05.)