Illinois Appellate Court Issues Rule 23 Order In Evanston Security Deposit Case

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: 

http://www.state.il.us/court/R23_Orders/AppellateCourt/2012/1stDistrict/1111048_R23.pdf