Do I Have to Pay for Hotel Expenses While the Tenant's Apartment is Being Repaired?
Full Question:
Answer:
Generally, in a breach of contract action, the tenant is entitled to “reasonable” out-of-pocket losses. Whether the $300/night hotel charge is reasonable will be a subjective determination for the court, based on all the facts and circumstances involved, such as the typical hotel room charge for hotels in the local area. It is possible for a tenant to terminate a lease due to breach of warranty of habitability.
Please see the following information from the Illinois Legal Aid Society:
Every residential lease includes an implied warranty of habitability. Jack Spring v. Little, 50 Ill.2d 351, 280 N.E.2d 208 (1972). Some leases also contain express warranties of habitability.
Breach of an express or implied warranty of habitability is a defense to a forcible entry and detainer action. The tenant is entitled to a rent set-off appropriate to the extent of the lessor’s breach. Glasoe v. Trinkle, 107 Ill.2d 1, 479 N.E.2d 915, 88 Ill.Dec. 895 (1985). The claim may be made by affirmative defense and by counterclaim.
The elements of a claim based on breach of the warranty of habitability include:
· Defects in the premises. These may be shown by failure to maintain the premises in substantial compliance with municipal building codes.
· Lessor’s knowledge of the defects.
· Lessor’s failure to repair defects.
· Defects would cause a reasonable person to consider the premises unfit, unsanitary, unhealthy or unsafe, but tenant need not establish that the premises are uninhabitable. Pole Realty co. v. Sorrells, 84 Ill.App.2d 178, 417 N.E.2d 1297, 49.Ill.Dec. 283 (1981).
Measure of damages
In Glasoe v. Trinkle, 107 Ill.2d 1, 479 N.E. 2d 915, 88 Ill.Dec. 895(1985), the Illinois Supreme Court approved two alternate methods for assessing damages due to the breach of the warranty of habitability:
· "percentage reduction in use" method. The rent claimed due by the lessor is set off by the percentage of reduction in use of the premises by the tenant over the period of time the defect existed.
· "difference in value" method. The rent claimed due by the lessor is set off by the difference in fair value of premises if they had been as warranted versus their value in their defective condition over the period of time the defect existed.
The court may consider the agreed monthly rent as the fair rental value. The lessor and/or the tenant may testify as to his or her opinion of the value of the premises in their defective condition, but expert opinion is advisable. The court should consider the severity of the breach, the duration of the breach, and the effectiveness of the lessor’s attempts to correct defects in determining the amount of rent abatement.
If tenant’s damages exceed the amount of rent due, the tenant has a complete defense, and is entitled to a judgment for the amount in excess of the rent owed. If rent is still due to lessor after appropriate abatement due to breach of the warranty of habitability, the tenant is entitled to a set off, but the lessor may still gain possession of the premises.
