In Foster v. Tucker,
2012 Ill. App. 111048-U, a recent Rule 23 order, the Illinois Appellate Court
affirmed a Cook County trial court’s determination that an Evanston, Illinois
landlord violated the Evanston Residential Landlord Tenant Ordinance’s (ERLTO) security
deposit provisions.
The tenant filed a lawsuit claiming that the landlord failed
to return her $2,500.00 security deposit within 21 days of her moving out of the
apartment nor did the landlord provide an itemized statement of
deductions. Section 5-3-5-1(c) of the
ERLTO states:
"Upon termination of the tenancy,
property or money held by the landlord as security or prepaid rent may be
applied to the payment of accrued rent and the amount of damages which the
landlord has suffered by reason of the tenant's noncompliance with Section
5-3-4-1 of this chapter, all as itemized by the landlord in a written notice
delivered to the tenant together with the amount due twenty one (21) days after
tenant has vacated his unit. Any security or prepaid rent not so applied, and
any interest on such security due to tenant shall be paid to the tenant within
twenty one (21) days after tenant has vacated his unit."
Section 5-3-5-1(F) states that
If the landlord fails to comply with
subsection (c) hereof, the tenant may recover the property and money due him
together with damages in an amount equal to twice the amount wrongfully
withheld and reasonable attorney’s fees
The landlord raised three issues on appeal: The first was that his actions were excusable
because the tenant failed to provide an updated address; Second, the trial
court failed to award him the alleged full amount of his apartment damages;
Lastly, the failure of the tenant to return her keys until seven days after
moving out created a holdover tenancy.
At trial, the landlord admitted that he failed to return the security
deposit or provide an itemized statement of deductions within the ordinance’s
21-day timeframe. The landlord inspected
the apartment after the keys were returned and claimed that there was $6,600 in
damages to the unit. The tenant and her
witness testified that upon cleaning the apartment, the only damage was to a
closet mirror.
The trial court found that the evidence demonstrated that the
landlord failed to follow Section 5-3-5-1(c) and awarded the tenant her
original $2500 deposit, $5000 in damages (two times the amount wrongfully
withheld), her court costs and $500 in attorneys fees. The trial court also awarded the landlord
$496.40 for the damage to the mirror.
As to the landlord’s argument that the tenant’s failure to supply
him with a forwarding address, the appellate court found that fact to be
irrelevant to the application of the Evanston ordinance. Citing Nadhir
v. Salomon, the court found that the evidence presented at trial showed
that the strict provisions of 5-3-5-1 were not followed because the landlord
did not “mail or deliver” the itemized deduction letter within the 21-day
period.
The court went on to explain that
[a]lthough defendant asserted he lacked
a forwarding address for plaintiff, defendant nevertheless could have mailed
the letter to the address vacated by plaintiff, as plaintiff has suggested. The
letter therefore, ideally, would have been forwarded by the postal service to
any new address on file. Such steps by defendant would have provided
documentation of his attempt to comply with the Ordinance. The trial court's
determination that defendant failed to comply with the Ordinance was not
contrary to the manifest weight of the evidence.
The tenant’s failure to provide a forwarding address did not
excuse the landlord’s failure to deliver a statement of deductions to the
tenant.
Next, the court addressed the apartment damage issue which could
only be overturned if it was apparent that evidence was disregarded. The defendant introduced his deduction letter
into evidence but the court only awarded him damages for the mirror. Because the issue of apartment damage was a
question of fact, the trial court was given deference to evaluate it. The trial judge, having this letter entered
into evidence and testimony given, decided that, as a factual question, the
landlord only incurred the damage for the mirror.
The appellate court also noted that it could not address the
factual findings of the trial judge because the landlord failed to include the
letter in the appellate record. Citing Foutch v. O’Bryant, “doubts that arise
from the incompleteness of the record [were] resolved against the [the appellant]." The trial court’s finding that the landlord was entitled to a small setoff was
affirmed.
Finally, the court rejected the landlord’s contention that the
late return of the apartment keys created a new holdover tenancy. If a holdover tenancy had been found to
exist, the landlord could have further offset any penalties imposed by the
ERLTO. Citing Hoffman v. Altamore, 352 Ill.App.3d 246 (2004), the court explained
that when a lease ends and a tenant remains, they may be treated as a holdover
tenant or as a trespasser. However, the
issue of whether a tenant is “holding over so as to trigger the landlord’s
option for a holdover tenancy, a tenant’s continued possession of the premises
upon the lease’s expiration must be voluntary and give the landlord reason to
believe that the tenant intends to continue occupancy.”
The court here found that the tenant’s retention of the keys for a
few days after the end of the lease did not constitute a holdover tenancy. Not only was the period of time between the
end of the lease and the key return short, the tenant testified that she told
the landlord she had moved out on the day the lease expired. The court looked to Hoopes v. Prudential Insurance Corp. of America, 47 Ill. App. 3d
146 (1977), for comparison. In Hoopes, the tenant had retained keys,
left a light on and left business decals on the building’s front door, but
otherwise had left the premises. The Hoopes court found that there was no
intent by the tenant to stay based on the evidence entered at trial.
The result was that the tenant’s judgment for treble damages under
the ERLTO, costs and attorney fees was affirmed by the appellate court.
The full opinion from the Appellate Court may be found at:
