Forcible Entry and Detainer

Evictions in the Chicago Courts in the year 2007 – The good, the bad, the “Not-So-Hot” and Recommendations for “Reform”=============================Presented to the CHICAGO BAR ASSOCIATIONCONSUMER LAW COMMITTEEDecember 6, 2007 byPaul Bernstein, Esq.

December 6, 2007 2

THE ILLINOIS STATUTE

The Illinois Statute on Civil Procedure governs. (Included in your materials)

However, in that Chicago is a “Home Rule” jurisdiction, the Chicago Residential Landlord and Tenant Ordinance (“RLTO”) substantially modifies the RLTO.

STILL, eviction proceedings are barbaric and procedures need significant statutory changes.

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THE CHICAGO RLTO

Adopted in 1986 Without Mayor Harold Washington, there

would be no such Ordinance in effect. Often called the “Tenants Bill of Rights”, the

RLTO “leveled the playing field”, at least a bit, as to the relative rights of landlords and tenants. (A copy of the RLTO is Included in your materials)

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PURPOSES AND POLICY OF THE RLTO – FIRST SECTION

The public policy of the RLTO is made very, VERY clear in the very first section of the Ordinance – Sec. 5-12-010.

That expression of public policy is reflected in many parts of the RLTO, especially

In Section 5-12-150 on Retaliatory Eviction, particularly compared to the State Law.

However, Retaliation is not a favorite of our courts.

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What Leases covered by RLTO?

Every residential lease is covered, but with certain exceptions.

Main exception is SIX FLATS or less that are OWNER occupied.

Surprise – leases of single family residence are covered, as long as owner does not live there.

Surprise – leases of condominiums are covered. Subsidized housing leases are covered as well.

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DEFINITIONS – Sec. 030

“Dwelling Unit” includes common areas and all facilities supplied to tenants.

“Landlord” means “the owner, agent, lessor or sublessor, or the successor in interest of any of them”

“Owner” includes title holders and beneficial owners of land-trusts .

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RLTO – REPAIRS - I

Tenants can demand repairs and have remedies. No similar counter-part in the Illinois law. Sec. 5-12-070 – “The landlord shall maintain the

premises in compliance with all applicable provisions of the municipal code and shall promptly make any and all repairs necessary to fulfill this obligation.”

Sec. 5-12-110 provides an extensive listing of TENANT REMEDIES.

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RLTO – REPAIRS - II

“Repair and Deduct” – Sec. 5-12-110(c) - Minor Defects.

Rent “REDUCTION” – Sec. 5-12-110(d) – Major Defects.

14-day letters required under (c) and (d). – Tricky area.

More extreme situations – overview, time permitting. Even though retaliation not allowed (5-12-150 of the

RLTO), very often, exercises of remedies results in eviction action being filed by the landlord - Retaliation.

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SECURITY DEPOSITS

Very significant provisions to encourage landlords to realize this is the tenants’ money.

Commingling; receipts; interest; return of deposits; transfer of title; damages provided by the RLTO, and

MY favorite section, Section 5-12-180 on attorney’s fees….also applies to defense of retaliatory evictions, BUT if the landlord files a “Joint Action” and rental is covered by RLTO, the landlord’s attorney can NOT recover legal fees!

Lawrence v. Regent Realty. Pitts v. Holt. Other important cases….see LAF discussion hand-out.

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TERMINATION OF TENANCIES – Section 5-12-130 – Landlord Remedies

Non-Payment of Rent – Five Day Notice Violation of lease provisions – RLTO v. State – Ten Day Notice Failure to Maintain Disturbance of Others Abandonment Waiver of right to terminate lease Notice of Renewal of Rental Agreement Notice of Refusal To Renew Rental Agreement

– Notices to terminate month-to-month tenancy– Notice of non-renewal of written lease– 60-day provision if notice not timely given

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COMMON DEFENSES TO LEASE TERMINATIONS

5-day notice served on 1st day of month provides that lease will terminate on the 5th day of the month. BAD NOTICE.

30-day Notice of Termination of Tenancy given on 2nd day of month not effective until end of following month – premature filings.

5-day notice given on Monday – 5th day is Saturday and eviction filed on Monday.

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PROHIBITED PROVISIONS – Section 5-12-140 of RLTO

Waiver of Jury Demand prohibited No limitation of liability No confessions of judgment No waiver of termination notices allowed No payment of landlord attorneys fees except as

allowed by law Ability to terminate lease early must go both ways

and be a part of a separate notice Limits on late-payment-of-rent charges Two months rent to tenant if landlord tries to

enforce an illegal provision

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PROHIBITED ACTION BY LANDLORD Section 5-12-150 of RLTO - I

Prohibition on Retaliatory Conduct

“It is declared to be against public policy of the City of Chicago for a landlord to take retaliatory action against a tenant except for violation of a rental agreement or violation of a law or ordinance.”

“A landlord may not knowingly terminate a tenancy, increase rent, decrease services, bring or threaten to bring a lawsuit against a tenant for possession or refuse to renew a lease or tenancy because the tenant has in good faith:”

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PROHIBITED ACTION BY LANDLORD – Section 5-12-150 of RLTO - II

Complained of Code violations to City Complained to Community Org. or media Sought assistance of same as above REQUESTED LANDLORD TO MAKE REPAIRS Became a member of tenants organization Testified in court or admin. Proceedings Exercised ANY right or remedy provided by law

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PROHIBITED ACTION BY LANDLORD – Section 5-12-150 of RLTO - III

If landlord violates this section, tenant has a defense.

Damages are several – read the last paragraph of Sec. 5-12-150.

Rebuttable Presumption if prohibited action by Landlord within 12-months after tenant takes protected action(s).

PRESUMPTION IS REBUTTABLE

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PROCEDURES - LANDLORD

Notice of termination of tenant served Time period gone by Filing of forcible entry and detainer case “Single” Action, and why do it that way Service: Sheriff; special server; posting Time table – assume last date of notice are Mon - Fri:

– Five-day notice: Served 10/2 – ends 10/8– File on 10/9 – 15 days to trial date– “Return Day” is 10/24– That’s a trial date and tenant may be evicted that date with

either a 7 or 14-day stay, so tenant could be OUT of possession – and depending on how quickly the Sheriff can do what the Sheriff needs to do, the tenant can be on the street in about one month’s time.

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ADVANTAGE – LANDLORD - I

In that the legal forms are basic and easy to fill-in, time of counsel for landlord to create and file complaints and summons is very modest.

AND, the landlord has the advantage of knowing EVERYTHING there is to know about the tenant and the tenant’s tenancy.

Landlords’ attorneys also have standard and customizable forms of discovery including REQUESTS TO ADMIT.

Higher volume landlord attorneys also have the advantage of “stacking their cases” so that when their first case is called, the attorneys for all litigants not involved in that law firm’s cases just wait until counsel with the stack gets through the entire stack….

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ADVANTAGE LANDLORD - II

SUGGESTED REFORM: A judge or judges should arrive early to take all “AGREED ORDERS” BEFORE Court convenes so that “from time-to-time” lawyers or lawyers with multiple court-rooms to cover can move on to other courtrooms.

SUGGESTED REFORM: Volume plaintiff lawyers should be taken at the end of the call.

Many tenants think that they will be before a Judge like “Judge JUDY”! Not so.

Tenants are, in my judgment, misinformed: VIDEO that is now shown in Room 1402 SIGN outside eviction courtrooms – “AFTER” you’ve been evicted EVERY TENANT MUST HAVE AN ATTORNEY.

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DETAILS – Landlord Advantages

Landlord has adequate time to prepare Tenant not given a “full deck of cards” Absolute need for Tenants to have attorney Lawyers Committee for Better Housing studies,

past and present NEED to file JURY Demand and procedure when

Jury Demand is filed – case continued 7 days Abuses with POSTINGS Tenants have little time to prepare based on dates

for progress of case, so Jury Demand essential. CUSTOMARY “First time up” Order in Jury Room

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SOME FACTS

About 35,000 evictions per year in Cook County Average eviction case for Pro Se tenant is about two

minutes. Landlord’s proof Tenant’s Pro Se defenses BUT, tenant does not know the procedure and does not

know the law: Implied Warranty of Habitability; “Rebuttable Presumptions” in Retaliation cases; “Germane” defenses and Non-Germane Defenses.

Eviction means loss of one’s home, schools of the children and the occupants community and perhaps homelessness.

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TENANTS’ LAWYERS

Answer NOT required but suggested. Affirmative Defenses: Retaliation; Breach of Implied

Warranty of Habitability. Right to have Jury trial. Right to have discovery: Interrogatories; Requests to

Admit; Requests for Production of Documents; Depositions.

At a disadvantage as landlord lawyers’ clients are “commercial clients”, pay by the hour and should be billed monthly…..while most residential tenants cannot pay legal fees on a “pay-as-you-go” basis and tenants’ lawyers must rely on 5-12-180 of the RLTO to obtain their legal fees.

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USE AND OCCUPANCY - I

Use and Occupation or Use and Occupancy. Rent during the pendency of the eviction proceedings –

important issue when a jury demand is filed to due back-log in Jury room.

Hearing on Use and Occupancy – pictures, responses, preparation, likely result and Unlikely result.

What happens if the tenant fails to pay the Court ordered Use and Occupation? At the moment, its eviction as a sanction for failure to obey a court order. (This is an appeal on this issue going on now and although as of now the Judges in the Jury Room do not enter RETROACTIVE “Use and Occupancy” awards, suppose the tenant has or had a good defense to the eviction in the first place? Unlike Preliminary Injunction matters, the Courts do NOT go into these details and often tenants, in my view, are improperly and unfairly evicted for the unintended failure to pay Use and Occupancy.

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USE AND OCCUPANCY - II

SUGGESTED REFORM: Let landlord file Motion for Use and Occupancy with Eviction Complaint. Speeds up the process.

SUGGESTED REFORM: Preliminary hearing on whether affirmative defenses of Breach of Implied Warranty of Habitability” and/or “Retaliatory Eviction” likely to prevail BEFORE hearing on Use and Occupancy – if so, eviction dismissed and landlord goes into small claims court only.

SUGGESTED REFORM: No eviction for non-payment of U&O unless clearly contumacious and intentional failure to comply with payment order, and maybe not even then.

SUGGESTED REFORM: Lawyers for LL & T required to negotiate in good faith on what the U&O should be AND enter agreed orders accordingly, OR else, Judge will take failure to negotiate before a Court hearing on the subject and act accordingly, pursuant to standards or general conditions noted on a WEB site on the Internet that the eviction judges should have.

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TENANT RESOURCES AVAILABLE

Bench Book (One of the handouts) Booklet of CBA on this topic ListServ conversations Case law – Summary of case law from Other resources,

such as Paul Bernstein web site at: http://www.paulbernstein.net and

Lawyers Committee for Better Housing at: http://www.lcbh.org and

Metropolitan Tenants Organizationat http://www.tenants-rights.org

Illinois Pro Bono Web site: http://www.illinoisprobono.org/

Many other resources we should collaborate and add

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SUGGESTIONS FOR CHANGE - I

Judges to have agreed Internet WEB site Procedures in each court-room Legal forms in common use Standard Jury instructions Admonitions to tenants – Get a lawyer – Lists Public Resources Available General standards on Use and Occupancy Failure if not exercise good-faith in U&O

matters

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SUGGESTONS FOR CHANGE - II

Publish and hand out Bench Book now and as REVISED.

Make Bench Book Fairer and included uncertain issues and alternatives.

Scheduling of motions and Courtesy Copies. Handling of AGREED Orders both before day

of hearing and on day of hearing. No preferences to high-volume lawyers…

schedule them at 10:30 or 11:00.

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SUGGESTONS FOR CHANGE - III

Pay lawyers for tenants who WIN, a fair fee based on AGREED standards for compensation…..keeping in mind the CONTINGENT nature of representing most residential tenants, and have standards on the web-site that the Judges will take into consideration.

For Judicial economy and so as to prevent proliferation of law suits, allow supposedly “NON-Germane claims as counterclaims in evictions…and determine in one law suit all the actions and causes of action the landlord and tenants each have against each other.

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OTHER ISSUES

When is “rent” NOT rent - Section 8 Foreclosure procedures and the RAW POWER OF BANKS. Germane vs. Non-Germane Meaning/examples of Habitability Retaliation and presumptions rebutted Constructive Eviction Need an expert to testify on value Proving building code violations Ability of tenant to testify Class actions

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PAUL BERNSTEIN’S SUGGESTIONS - I

NO TENANT SHOULD EVER APPEAR IN EVICTION COURT WITHOUT A LAWYER.

There are reasons why ALL lawyers should be interested in and participate in handling evictions….between LAF and LCBH, only about 5% of annual evictions have lawyers representing tenants.

Tenants can seldom win – held to the same standards as a lawyer as to the LAW and PROCEDURE.

This barbaric procedure – putting someone’s possessions out on the street and totally displacing them without help, assistance, or governmental placement is not what a modern society should do in times of peril.

THIS WILL ALL BECOME EVEN MORE FRONT AND CENTER STAGE WHEN FORECLOSURES RESULT IN EVICTIONS.

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PAUL BERNSTEIN’S SUGGESTIONS - II

Start a TENANTS RIGHTS and REMEDIES Committee here at the Chicago Bar Association.

Future Events to pursue such an agenda….just as our Presidents say “No Child Left Behind”, we lawyers should have a slogan: “NO TENANT WITHOUT AN ATTORNEY”!

Paul Bernstein, Attorney At Law

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List of Handouts

Chicago Residential Landlord and Tenant Ordinance

State Statute on Evictions Present Bench Book Lawrence v Regent Realty Pitts v. Holt Metroplex v. Powell Legal Assistance Foundation Case Law Reed v. Burns