One of the more potent weapons delivered to tenants in the Chicago Residential Landlord Tenant Ordinance is the prohibition on retaliatory conduct by landlords. Section 12-5-150 of the Chicago Municipal Code prohibits a landlord from terminating a tenancy, increasing the rent, commencing an eviction, threatening eviction, or refusing to renew a lease merely because a tenant has “in good faith”:
- complained of housing code violations to a regulatory authority or the news media;
- sought the assistance of a community organization to remedy a code violation or illegal practice;
- requested that the landlord make repairs mandated either by the housing code or the lease;
- testified at a hearing about the condition of the premises; joined a tenants’ union;
- or exercised any other right or remedy provided by law.
If a landlord violates the prohibition against retaliatory conduct, the tenant may raise the issue in defense to an eviction proceeding and may also, even if no longer in possession, recover twice the monthly rent plus reasonable attorneys’ fees. Moreover, if there is evidence that the tenant took any action protected under the ordinance within one year prior to the alleged act of retaliation (e.g., complaining about code violations or breaches of the lease), that evidence creates a “rebuttable presumption that the landlord's conduct was retaliatory.” In other words, in a civil court action, the game starts with the landlord down by a touchdown in the fourth quarter. And the tenant has "possession."
While prohibitions against retaliation are all fine and good, landlords with real world experience recognize that, in practice, the ordinance becomes a weapon in the hands of challenging renters. Though published judicial decisions on retaliatory eviction are sparse, the issue is frequently litigated, much to the chagrin of decent, law-abiding landlords. Even without the statutory “presumption” that landlords retaliate anytime they attempt to oust a tenant within one year of a complaint about building conditions, courts are generally skeptical of landlords who attempt to rid themselves of renters who complain about building conditions, yet consistently pay their rent on time. In a town where tenants are accorded wide latitude, it is therefore incumbent upon landlords to treat all tenants similarly and to carefully document all aspects of every tenancy. If a tenant consistently pays late, disturbs the neighbors, or violates the provisions of the lease, the landlord should always document the problem in order to preclude any possibility that a later attempt to terminate the tenancy, or even refuse to renew the lease, can be viewed as a retaliatory eviction, particularly given the “presumption” of retaliation.
For those landlords who wish to know more about the two published appellate court cases that have addressed (and shaped) the law of retaliatory eviction, we have summarized them below.
Reed v. Burns (1992)
Georgia Burns moved into an apartment in June 1989 and, over the course of the ensuing year, experienced problems with plumbing pipes, lighting fixtures, rodent infestations, and a broken thermostat (which prompted her to call the “no heat hotline”). After her lease expired, she “held over,” but continued to complain about housing code violations. At this point, her landlord served a 30-day notice to terminate the tenancy, as required by state law for month-to-month leases. The notice was followed by an eviction proceeding, at which point Ms. Burns counterclaimed for retaliatory eviction under the Chicago Municipal Code. Although the eviction action was dismissed (presumably because the tenant moved out), the counterclaim went to trial. The judge then ruled that state law preempted the Chicago ordinance, in which case the landlord could terminate the tenancy on 30 days’ notice for any or no reason (other than, say, unlawful discrimination).
The appellate court reversed the decision. It held that the Chicago Municipal Code, with its prohibition against retaliatory eviction, took precedence over state law. The appellate court noted that the tenant never missed a single rent payment and that the landlord never previously sought to evict any tenant for any reason other than non-payment of rent. Accordingly, the court ruled that the landlord had failed to rebut “the ordinance’s presumption of retaliatory eviction by establishing a history of . . . chronic rent default, nuisance or other problems” created by the tenant’s possession of the premises.
Strictly speaking, this case simply establishes that the retaliatory eviction remedies in the ordinance apply in month-to-month leases. Practically speaking, it demonstrates that any Chicago tenant (whose lease is governed by the ordinance) can vest himself with an unlimited number of options to renew for an additional year merely by requesting the most trivial repairs at least once during each term. Will the average tenant do this? Obviously not. Will the most problematic tenants do this? Don’t bet against it.
American National Bank (as Trustee) v. Powell (1992)
John Powell rented an apartment in the brown brick high-rise at 4700 South Lake Park Avenue for nearly 25 years before he sent a letter to his landlord requesting a long litany of repairs to his decaying unit. Although the Chicago Residential Landlord and Tenant Ordinance articulates a procedure by which a tenant may withhold rent if certain repairs are not made, Mr. Powell failed to follow that procedure with exactitude. Specifically, he deducted $167 in rent (about one-quarter of the monthly payment) before the landlord’s 14-day period for making repairs expired. The landlord made the requested repairs and promptly filed an action for eviction based on the failure to pay all rent due before the end of the five-day grace period. Mr. Powell raised retaliatory eviction as a defense.
The trial court held that the ordinance grants the landlord 14 days to make requested repairs and that Mr. Powell failed to follow the correct procedure by deducting rent too early. Then it struck down the retaliatory eviction defense because, having found that Mr. Powell was in arrears on rent, he could not claim retaliatory eviction.
In an apparent trend, the appellate court reversed and ruled in favor of the tenant. Although it agreed that Mr. Powell did not follow the proper procedure for withholding rent, it determined that his complaints about the condition of the apartment amounted to “protected conduct” under the ordinance. The court seemed particularly moved by evidence that Mr. Powell “lived in this building for nearly 25 years, but [the landlord] quickly moved to evict him” as soon as he withheld $167 because the unit required repairs. It also noted that the landlord filed similar eviction actions against six other building tenants who requested repairs. Finally, the court held that the procedures for withholding rent under the ordinance were not so clear-cut as to permit the conclusion that Mr. Powell was acting in bad faith. (In a final technicality that only lawyers will appreciate, the court ruled that a tenant could pursue a claim for damages in these instances even though an eviction proceeding is intended to focus exclusively on the issue of possession.)
Strictly speaking, the court ruled that a tenant can assert a retaliatory discharge defense even when he fails to pay the legally mandated rent, provided he’s acting in “good faith.” Now, how often is this particular fact pattern going to arise? Not very. But the case sets a tone. As we at domu see it, when it comes to non-renewing leases (rather than evictions) landlords should have a file or spreadsheet that tracks any and all tenant complaints, as well as any decisions not to renew the leases of any other tenants for any reason, even tenants who timely paid rent. Because the ordinance presumes that a landlord has retaliated following any type of complaint by the tenant within the preceding year, the landlord can prevail at trial only by proving a negative (i.e., that it did not act with improper motive). Good luck to the landlord that wants to prove a negative knowing that it has to pay the tenants’ legal fees if it loses. For those who do, we suggest that they have clear documentation of similar action taken with respect to tenants who have not raised complaints during their tenancies. Any evidence of disparate treatment is likely to be fatal.