As a firm that practices Chicago tenants’ rights law, a common question we receive from tenants is, “What can I do if my apartment flooded?” While the answer is not straightforward, this article will discuss different options that are available for tenants in this situation.
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If you are interested in consulting a lawyer for representation in one of those areas, please contact us.Tenants have certain rights afforded to them under the Chicago Residential Landlord Tenant Ordinance (“RLTO”) and Illinois state law.
PROTECTION TO TENANTS UNDER THE RLTO
The RLTO grants most tenants in Chicago powerful rights and remedies. Under 5-12-070, the landlord has a responsibility to maintain the premises in compliance with all applicable provisions of the municipal code and must also make any repairs necessary to fulfill this obligation. Section 5-12-110 provides a list of examples of failure to maintain the property. For purposes of this article the relevant examples are listed below:
- Failure to maintain the structural integrity of the building;
- Not maintaining or providing a functioning toilet, sink, bathtub and shower/bath;
- Not maintaining the roof so it is substantially water-tight;
- Not maintaining floors, ceilings and interior walls;
- Not maintaining basements in a safe and sanitary condition;
- Allowing stagnant water to accumulate;
- Not maintaining plumbing and appliances;
- Not maintaining electrical systems;
- Not maintaining the unit and common areas in habitable condition.
If the flooding in your apartment is due to your landlord’s failure to maintain the building you have various remedies available discussed below. The remedies for these violations are among the most complicated in the RLTO. Because the rules must be followed precisely, all tenants should consult with an attorney before attempting to exercise their rights. Any misstep can result in an eviction and/or lawsuit for unpaid rent.
Terminate. Give the landlord written notice of the acts or omissions that violate the RLTO or the lease and specifying that the lease will terminate 14 days after receipt of the notice if the landlord does not remedy the conditions. If the landlord does not fix the problem, the lease terminates and the tenant must vacate the unit within 30 days. The landlord must return prepaid rent, the security deposit and interest.
Notify and deduct. In cases of a minor violation, when the cost of repairing is less than the greater of $500 or one-half monthly rent, the tenant may notify the landlord, in writing, that if the condition is not fixed within 14 days of the notification (or less in case of emergency), the tenant will fix the condition and deduct the cost from rent. If the landlord does not fix the condition, the tenant may have the repair made in a workmanlike manner at a reasonable price customarily charged for such work. The tenant then may submit the paid bill to the landlord and deduct that amount from the rent. This remedy is not available if condition was caused by the tenant or his family or guests.
Notify and withhold. A tenant may withhold from monthly rent an amount that reasonably reflects the reduced value of the apartment due to the landlord’s violation. If the tenant notifies the landlord of the deficiency in writing and the landlord fails to correct the condition within 14 days after notification, the tenant may deduct the reasonable reduction in value from the rent for as long as the deficiency exists. This remedy is also not available if the condition was caused by the tenant, his family or guests.
Damages and injunctive relief. The tenant may sue the landlord for damages or claim the material noncompliance as a defense. The tenant may also obtain an injunction against the landlord.
Section 5-12-110(g) further provides that if the apartment is damaged due to a casualty that causes a violation of the rental agreement or ordinances, you may:
- Vacate immediately and notify the landlord in writing within 14 days that you intend to terminate the lease; or
- Vacate any part of the apartment that is unusable and reduce rent by the fair market value of the loss; or
- If you remain in the unit due to promises of repair by the landlord and the landlord fails to fulfill those promises, you may give 14 days notice and terminate the rental agreement and vacate.
The landlord shall return prepaid rent, the security deposit and interest as well as any portion of rent attributable to a portion of the term after the casualty.
PROTECTION UNDER ILLINOIS STATE LAW
While the RLTO protects you if the landlord fails to maintain the premises, what happens if your property is damaged from flooding after a heavy rainstorm?
Under the common law, a landlord is not liable for damage to a tenant’s property caused by defects in the premises unless there is an express warranty about the condition or a covenant to repair in the lease. In addition, for a lease of a premise to be used for a specific purpose, there is no implied covenant that the premises are fit for that purpose. Additionally, your lease probably has provisions stating there are no representations or warranties as to the condition or repair of the premise. In addition, the lease will likely have provisions that explicitly state that the landlord is NOT responsible for damage to your personal belongings even if they are damaged from defects in the apartment (including flooding).
There is an exception to this general rule known as the implied warranty of habitability. The warranty applies to latent defects that exist at the time of leasing. Where the landlord knows or should know of the defect and where the defect could have not been discovered after a reasonable inspection of the premises by the tenant, the landlord will be held liable for damage to the property of the tenant caused by the latent defect.
As a tenant, you have a duty to examine the apartment to ensure it is safe and suitable for living. The landlord has a duty to disclose any latent defect if it is likely to cause injury to the person or property of the tenant and where the defect is not readily discoverable by the tenant.
If the landlord fails to disclose the defect it may constitute fraud or negligence that results in the landlord’s liability for your injuries caused by the concealment of the latent condition. In order for there to be a breach of this warranty, the defect must be of such a substantial nature as to render the premises unsafe or unsanitary, and thus unfit for occupancy. Glasoe v. Trinkle 107 Ill.2d 1, 13 (1985). In other words, the landlord does not have a duty to make the unit perfect or aesthetically pleasing. Id. In addition, the tenant must give notice of the defects to the landlord and the landlord must be given a reasonable time to correct the deficiencies. Id at 14. An example of an Illinois court holding a landlord liable for flood damage is described below.
In Wanland v. Beavers, 130 Ill.App.3d 731 (1985), the landlords sued the tenants to recover rent after the tenants vacated the apartment due to extensive flooding. During trial, the landlords admitted that the apartment complex was located on a flood plain and that various parts of the complex flooded in the past, including three or four times in the two years prior to trial. Id. at 733. The landlords also testified that the city of Elgin instituted condemnation proceedings against the apartment complex because of the recurrent flooding and inadequate drainage. Id at 734.
In this case the flooding occurred on December 3, 1982, but the tenants showed that as late as April 1983 the landlords failed to make the necessary repairs to make the apartment habitable. Id. at 733. The court found that the tenants clearly demonstrated that the apartment contained a latent defect-inadequate drainage with a resulting proclivity toward flooding. Id. at 734. The court further noted that the landlords knew of the defect and failed to inform the tenants about the flooding problems and that the condition was not readily discoverable by a tenant during a reasonable inspection. Id. Ultimately the landlords were held liable for the property damage the tenants sustained as a result of the flooding.
If your situation is covered under Illinois law, the next question that comes to mind is how much money can I recover? Before determining what you are entitled to or deducting any rent make sure to consult with a seasoned tenants’ rights attorney. These issues are complex and landlords often retaliate against unrepresented tenants.
Illinois uses two methods to calculate damages: difference in value and percentage reduction in use. Glasoe at 15.
The difference in value method also has two variations. Id at 16. Under the first variation the tenant’s damages are measured by the difference between the fair rental value and the fair value during the tenant’s occupancy in the unfit conditions. Id. According to the other variation the tenant’s damages are measured by the difference between the agreed rent and the fair rental value of the premises during their unfit condition. Id. The percentage reduction in use method reduces the tenant’s rent by a percentage reflecting the diminution in value and enjoyment of the premises due to the defect that gave rise to the breach of the implied warranty of habitability. Id. Either way, the tenant is only liable for the fair rental value of the defective premises during the breach and is entitled to a reduction in rent in excess of that amount. Id at 17.
Breach of Contract
The lease is a contract between you and the landlord. If the flooding makes a portion of the property uninhabitable there is a possible breach of contract lawsuit that may be filed.