1 10/3/2007(c) 2007 carpls carpls volunteer training landlord-tenant law for volunteer lawyers matt...

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1 10/3/2007 (c) 2007 CARPLS CARPLS Volunteer Training Landlord-Tenant Law For Volunteer Lawyers Matt Gallagher Senior Staff Attorney CARPLS [email protected]

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Page 1: 1 10/3/2007(c) 2007 CARPLS CARPLS Volunteer Training Landlord-Tenant Law For Volunteer Lawyers Matt Gallagher Senior Staff Attorney CARPLS mgallagher@carpls.org

110/3/2007 (c) 2007 CARPLS

CARPLS Volunteer Training

Landlord-Tenant Law

For Volunteer Lawyers

Matt Gallagher

Senior Staff Attorney

CARPLS

[email protected]

Page 2: 1 10/3/2007(c) 2007 CARPLS CARPLS Volunteer Training Landlord-Tenant Law For Volunteer Lawyers Matt Gallagher Senior Staff Attorney CARPLS mgallagher@carpls.org

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Overview of Substantive Training

Preliminary Questions for Callers Initial Legal Considerations Pre-Tenancy Issues Issues Arising During Tenancy Post-Tenancy Issues Miscellaneous Issues

Page 3: 1 10/3/2007(c) 2007 CARPLS CARPLS Volunteer Training Landlord-Tenant Law For Volunteer Lawyers Matt Gallagher Senior Staff Attorney CARPLS mgallagher@carpls.org

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Preliminary Questions for Clients

There are certain preliminary questions that should be asked of all callers with landlord-tenant problems

Page 4: 1 10/3/2007(c) 2007 CARPLS CARPLS Volunteer Training Landlord-Tenant Law For Volunteer Lawyers Matt Gallagher Senior Staff Attorney CARPLS mgallagher@carpls.org

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Background information questions

Where is the apartment? Who is the tenant? Is it subsidized housing? Who is the landlord and where does

the landlord live? How many units are in the building?

Page 5: 1 10/3/2007(c) 2007 CARPLS CARPLS Volunteer Training Landlord-Tenant Law For Volunteer Lawyers Matt Gallagher Senior Staff Attorney CARPLS mgallagher@carpls.org

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Questions About the Lease

How much is the monthly rent? How much is the security deposit? Is the lease written or oral?

Page 6: 1 10/3/2007(c) 2007 CARPLS CARPLS Volunteer Training Landlord-Tenant Law For Volunteer Lawyers Matt Gallagher Senior Staff Attorney CARPLS mgallagher@carpls.org

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Questions About the Situation

Is the tenant current on the rent? What is the problem? What is the client’s goal?

Page 7: 1 10/3/2007(c) 2007 CARPLS CARPLS Volunteer Training Landlord-Tenant Law For Volunteer Lawyers Matt Gallagher Senior Staff Attorney CARPLS mgallagher@carpls.org

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Preliminary Legal Considerations

Certain legal issue must be considered in virtually all landlord-tenant cases

Page 8: 1 10/3/2007(c) 2007 CARPLS CARPLS Volunteer Training Landlord-Tenant Law For Volunteer Lawyers Matt Gallagher Senior Staff Attorney CARPLS mgallagher@carpls.org

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Questions to Ask Yourself

What law applies? What does the client want? What is the likely path for this case?

Page 9: 1 10/3/2007(c) 2007 CARPLS CARPLS Volunteer Training Landlord-Tenant Law For Volunteer Lawyers Matt Gallagher Senior Staff Attorney CARPLS mgallagher@carpls.org

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What Law Applies?

A variety of laws can apply Local ordinances State Law Federal Law

Page 10: 1 10/3/2007(c) 2007 CARPLS CARPLS Volunteer Training Landlord-Tenant Law For Volunteer Lawyers Matt Gallagher Senior Staff Attorney CARPLS mgallagher@carpls.org

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Local Ordinances

Chicago Residential Landlord Tenant Ordinance (CRLTO) Applies to all dwellings in Chicago except:

Owner-occupied buildings of less than 6 units

Hotels, Motels, SROs Hospitals, Convents, Monasteries Real estate sale-related tenancies Employer-owned housing

Page 11: 1 10/3/2007(c) 2007 CARPLS CARPLS Volunteer Training Landlord-Tenant Law For Volunteer Lawyers Matt Gallagher Senior Staff Attorney CARPLS mgallagher@carpls.org

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Other local ordinances

Mount Prospect Evanston Oak Park

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Illinois Statutes

Forcible Entry & Detainder Act Security Deposit Return Act Security Deposit Interest Act Utility Service Act Residential Tenant Right to Repair

Act Human Rights Act

Page 13: 1 10/3/2007(c) 2007 CARPLS CARPLS Volunteer Training Landlord-Tenant Law For Volunteer Lawyers Matt Gallagher Senior Staff Attorney CARPLS mgallagher@carpls.org

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Federal Laws

Subsidized Housing Rules Fair Housing Act

Page 14: 1 10/3/2007(c) 2007 CARPLS CARPLS Volunteer Training Landlord-Tenant Law For Volunteer Lawyers Matt Gallagher Senior Staff Attorney CARPLS mgallagher@carpls.org

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What does the client want?

What is the client’s expressed goal? Is this a realistic goal? What are the economics of the

situation? What is a realistic goal? Can the client help themselves?

Page 15: 1 10/3/2007(c) 2007 CARPLS CARPLS Volunteer Training Landlord-Tenant Law For Volunteer Lawyers Matt Gallagher Senior Staff Attorney CARPLS mgallagher@carpls.org

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What is the likely path through CARPLS?

A CARPLS Case

Referral to Legal

ServiceProvider

Referral to Social

Service orGovernment

Agency

Advise clientOver

the phone

Mail to clientSelf-helpmaterial

Page 16: 1 10/3/2007(c) 2007 CARPLS CARPLS Volunteer Training Landlord-Tenant Law For Volunteer Lawyers Matt Gallagher Senior Staff Attorney CARPLS mgallagher@carpls.org

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Typical Fact Patterns

Questions you should ask What law governs General practice tips Referrals and mail outs

Page 17: 1 10/3/2007(c) 2007 CARPLS CARPLS Volunteer Training Landlord-Tenant Law For Volunteer Lawyers Matt Gallagher Senior Staff Attorney CARPLS mgallagher@carpls.org

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Pre-tenancy issues

Common issues which arise before the tenant signs the lease or moves into the unit

Page 18: 1 10/3/2007(c) 2007 CARPLS CARPLS Volunteer Training Landlord-Tenant Law For Volunteer Lawyers Matt Gallagher Senior Staff Attorney CARPLS mgallagher@carpls.org

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Tenant put down security deposit and wants to back out of the deal

Can the client document it? Is there a valid lease? Did the client sign anything?

Basic contract law appliesNo legal aid referrals or mail outs

Page 19: 1 10/3/2007(c) 2007 CARPLS CARPLS Volunteer Training Landlord-Tenant Law For Volunteer Lawyers Matt Gallagher Senior Staff Attorney CARPLS mgallagher@carpls.org

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Issues Arising During Tenancy

Common issues arising during the course of the tenancy

Page 20: 1 10/3/2007(c) 2007 CARPLS CARPLS Volunteer Training Landlord-Tenant Law For Volunteer Lawyers Matt Gallagher Senior Staff Attorney CARPLS mgallagher@carpls.org

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Apartment Condition Problems I

Governing Law:

Common law CRLTO Residential Tenant Right to Repair

Act

Page 21: 1 10/3/2007(c) 2007 CARPLS CARPLS Volunteer Training Landlord-Tenant Law For Volunteer Lawyers Matt Gallagher Senior Staff Attorney CARPLS mgallagher@carpls.org

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Apartment Condition Problems II

CRLTO: “Repair and deduct” for minor or

moderate problems Lease termination for major

problems Written notice requirements Tenant may make repairs

Page 22: 1 10/3/2007(c) 2007 CARPLS CARPLS Volunteer Training Landlord-Tenant Law For Volunteer Lawyers Matt Gallagher Senior Staff Attorney CARPLS mgallagher@carpls.org

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Apartment Condition Problems III

Illinois Residential Tenants Right to Repair Act

Similar to CRLTO Similar exclusions

Page 23: 1 10/3/2007(c) 2007 CARPLS CARPLS Volunteer Training Landlord-Tenant Law For Volunteer Lawyers Matt Gallagher Senior Staff Attorney CARPLS mgallagher@carpls.org

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Apartment Condition Problems IV

If no statute, look to:

Language of printed lease Common law

Page 24: 1 10/3/2007(c) 2007 CARPLS CARPLS Volunteer Training Landlord-Tenant Law For Volunteer Lawyers Matt Gallagher Senior Staff Attorney CARPLS mgallagher@carpls.org

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Apartment Condition Problems V

Practical advice: Everything must be in writing!!! Call building inspector Take pictures Retaliation is an issue Make sure tenant doesn’t wind up

complaining their way to homelessness

Page 25: 1 10/3/2007(c) 2007 CARPLS CARPLS Volunteer Training Landlord-Tenant Law For Volunteer Lawyers Matt Gallagher Senior Staff Attorney CARPLS mgallagher@carpls.org

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Eviction

Notices Eviction procedures Defenses to eviction

Page 26: 1 10/3/2007(c) 2007 CARPLS CARPLS Volunteer Training Landlord-Tenant Law For Volunteer Lawyers Matt Gallagher Senior Staff Attorney CARPLS mgallagher@carpls.org

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Eviction Notices - Types

5 Day - nonpayment of rent 10 Day - other breach of lease 30 Day - termination of month-to-

month tenancy

Page 27: 1 10/3/2007(c) 2007 CARPLS CARPLS Volunteer Training Landlord-Tenant Law For Volunteer Lawyers Matt Gallagher Senior Staff Attorney CARPLS mgallagher@carpls.org

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Eviction Notices - Service

Effective service of a notice: personal service on the tenant; service on a person 13 years old or older

if residing on the premises or in possession of the premises;

certified or registered mail, with return receipt; or

posting, but only where no one is in actual possession

Page 28: 1 10/3/2007(c) 2007 CARPLS CARPLS Volunteer Training Landlord-Tenant Law For Volunteer Lawyers Matt Gallagher Senior Staff Attorney CARPLS mgallagher@carpls.org

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Eviction Procedure - Intro

Forcible Entry & Detainder Statute Cook County Eviction Courtrooms

Daley Center Suburban

Page 29: 1 10/3/2007(c) 2007 CARPLS CARPLS Volunteer Training Landlord-Tenant Law For Volunteer Lawyers Matt Gallagher Senior Staff Attorney CARPLS mgallagher@carpls.org

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Eviction Timeline Part 1

Tenant served 5-day notice Complaint filed after 5-day expires Tenant served and assigned court

date about 2 weeks later Tenant appears on return date and

trial occurs same day Eviction order entered, enforcement

stayed for 1-2 weeks

Page 30: 1 10/3/2007(c) 2007 CARPLS CARPLS Volunteer Training Landlord-Tenant Law For Volunteer Lawyers Matt Gallagher Senior Staff Attorney CARPLS mgallagher@carpls.org

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Eviction Timeline Part 2

After stay expires, eviction order placed with Sheriff

Sheriff schedules eviction - 1-3 weeks after receipt of order

“24 hour letter” sent by sheriff Sometime thereafter, sheriff will

actually appear and evict

Page 31: 1 10/3/2007(c) 2007 CARPLS CARPLS Volunteer Training Landlord-Tenant Law For Volunteer Lawyers Matt Gallagher Senior Staff Attorney CARPLS mgallagher@carpls.org

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Defenses to eviction

Only germane defenses: Landlord did not serve proper

notice Tenant paid rent within 5 days Tenant did not breach lease Retaliatory eviction (under CRLTO) Waiver by landlordSpeak up - “I have a defense”

Page 32: 1 10/3/2007(c) 2007 CARPLS CARPLS Volunteer Training Landlord-Tenant Law For Volunteer Lawyers Matt Gallagher Senior Staff Attorney CARPLS mgallagher@carpls.org

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Evictions - Practical advice

Landlords almost always win It’s a matter of proof, not the truth Lack of a proper notice is the best

defense Agreed orders are tough to vacate Try to buy time only if it will help

the tenant

Page 33: 1 10/3/2007(c) 2007 CARPLS CARPLS Volunteer Training Landlord-Tenant Law For Volunteer Lawyers Matt Gallagher Senior Staff Attorney CARPLS mgallagher@carpls.org

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Common Area Utility Problems

Landlord or other tenant stealing utilities - call police, City and utility companies

Tenant can only be required to pay if in lease and if landlord gives 12 months bills - bad deal for tenant

Page 34: 1 10/3/2007(c) 2007 CARPLS CARPLS Volunteer Training Landlord-Tenant Law For Volunteer Lawyers Matt Gallagher Senior Staff Attorney CARPLS mgallagher@carpls.org

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Termination of Utilities

If landlord obligated to pay utilities in rent and fails to do so, potential rent abatement if tenant mitigates damages

Practical advice: Call landlord, if no response pay bill yourself and deduct from rent after mailing proof to landlord

Page 35: 1 10/3/2007(c) 2007 CARPLS CARPLS Volunteer Training Landlord-Tenant Law For Volunteer Lawyers Matt Gallagher Senior Staff Attorney CARPLS mgallagher@carpls.org

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Post-Tenancy Issues

Common issues which do not arise until after the tenancy is over

Page 36: 1 10/3/2007(c) 2007 CARPLS CARPLS Volunteer Training Landlord-Tenant Law For Volunteer Lawyers Matt Gallagher Senior Staff Attorney CARPLS mgallagher@carpls.org

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Security Deposits I

Typical problems: Landlord fails to return full amount Landlord sells building Tenant wants to use it as last

month’s rent

Page 37: 1 10/3/2007(c) 2007 CARPLS CARPLS Volunteer Training Landlord-Tenant Law For Volunteer Lawyers Matt Gallagher Senior Staff Attorney CARPLS mgallagher@carpls.org

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Security Deposits under CRLTO

Within 30 days of vacating, landlord must provide either: Full refund; or Itemized statement of damages with

receipts or estimates Within 45 days of vacating, landlord

must provide: Balance of security deposit; and Paid bills showing repairs done

Page 38: 1 10/3/2007(c) 2007 CARPLS CARPLS Volunteer Training Landlord-Tenant Law For Volunteer Lawyers Matt Gallagher Senior Staff Attorney CARPLS mgallagher@carpls.org

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Security deposit practicalities

If not covered by CRLTO or state act, look to lease and contract law

Take pictures when moving in and moving out!

Give landlord your forwarding address

Pro se court is always an option

Page 39: 1 10/3/2007(c) 2007 CARPLS CARPLS Volunteer Training Landlord-Tenant Law For Volunteer Lawyers Matt Gallagher Senior Staff Attorney CARPLS mgallagher@carpls.org

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Security deposit interest

Under CRLTO, rate set by City Comptroller - 1.68% for 2007

Under State Security Deposit interest act (25+ units), 0.5% for 2007

Otherwise, look to lease

Page 40: 1 10/3/2007(c) 2007 CARPLS CARPLS Volunteer Training Landlord-Tenant Law For Volunteer Lawyers Matt Gallagher Senior Staff Attorney CARPLS mgallagher@carpls.org

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Subsidized Housing Issues

Issues related to Section 8 and other subsidized housing programs

Page 41: 1 10/3/2007(c) 2007 CARPLS CARPLS Volunteer Training Landlord-Tenant Law For Volunteer Lawyers Matt Gallagher Senior Staff Attorney CARPLS mgallagher@carpls.org

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Section 8

Federal housing subsidy Market-rate apartments, rent

subsidy of 0-100% from government

Tenant signs a lease directly with landlord

Refer problem cases to LAF

Page 42: 1 10/3/2007(c) 2007 CARPLS CARPLS Volunteer Training Landlord-Tenant Law For Volunteer Lawyers Matt Gallagher Senior Staff Attorney CARPLS mgallagher@carpls.org

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Public Housing

CHA is the landlord Few CARPLS cases Clients generally know grievance

procedures Refer to LAF

Page 43: 1 10/3/2007(c) 2007 CARPLS CARPLS Volunteer Training Landlord-Tenant Law For Volunteer Lawyers Matt Gallagher Senior Staff Attorney CARPLS mgallagher@carpls.org

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Miscellaneous Issues

A grab bag of other miscellaneous issues

Page 44: 1 10/3/2007(c) 2007 CARPLS CARPLS Volunteer Training Landlord-Tenant Law For Volunteer Lawyers Matt Gallagher Senior Staff Attorney CARPLS mgallagher@carpls.org

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Discrimination

Discrimination based on race, sex, sexual orientation, source of income, or disability is illegal under various Federal, state, and local laws

Referrals are available to legal aid agencies and government agencies

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Exorbitant Late Charges

If CRLTO applies, limited to $10 per month plus 5% of rent to the extent the rent exceeds $500

Otherwise, no formal limit placed – check lease, check for reasonableness

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Tenant vs. Tenant harassment

Covenant of quiet enjoyment Try mediation if at all possible –

CCR Otherwise raise with landlord Very tough to break lease due to

this

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Landlord is the caller

Treat like any other caller re: income, etc.

Many low-income landlords do qualify because the rent is not coming in so they have no income

Mail out available on how to evict a tenant

Page 48: 1 10/3/2007(c) 2007 CARPLS CARPLS Volunteer Training Landlord-Tenant Law For Volunteer Lawyers Matt Gallagher Senior Staff Attorney CARPLS mgallagher@carpls.org

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Lease renewals

CRLTO requires 30 day notice of non-renewal

Otherwise, no requirement to notify of non-renewal unless set forth in written lease

Page 49: 1 10/3/2007(c) 2007 CARPLS CARPLS Volunteer Training Landlord-Tenant Law For Volunteer Lawyers Matt Gallagher Senior Staff Attorney CARPLS mgallagher@carpls.org

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Landlord’s access to apartment

Common law and CRLTO provide landlord reasonable access

Landlord must give reasonable notice (2 days) before entering

In emergencies landlord may enter without notice (but under CRLTO must give post-access notice)

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Lockouts

“Lockout” = any illegal withholding of possession of apartment from tenant by landlord, incl. changing locks and terminating utilities

Call 911 if it just happened Landlord cannot take self-help steps

to evict – only a sheriff can evict

Page 51: 1 10/3/2007(c) 2007 CARPLS CARPLS Volunteer Training Landlord-Tenant Law For Volunteer Lawyers Matt Gallagher Senior Staff Attorney CARPLS mgallagher@carpls.org

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Subleases

Landlord has to accept a reasonable sublease

Tenant remains primarily liable for rent

Page 52: 1 10/3/2007(c) 2007 CARPLS CARPLS Volunteer Training Landlord-Tenant Law For Volunteer Lawyers Matt Gallagher Senior Staff Attorney CARPLS mgallagher@carpls.org

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Building code violations

CRLTO requires landlord to notify tenants of all building code violations within prior 12 months

Page 53: 1 10/3/2007(c) 2007 CARPLS CARPLS Volunteer Training Landlord-Tenant Law For Volunteer Lawyers Matt Gallagher Senior Staff Attorney CARPLS mgallagher@carpls.org

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Roommates

If both named on lease, they are jointly and severally liable

If only 1 is named, the other is considered a subtenant

Roommates can evict other roommates