Plaintiff, Home Rentals Corporation (Home Rentals), appeals from a judgment of the circuit court of Jackson County

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Plaintiff, Home Rentals Corporation (Home Rentals), appeals from a judgment of the circuit court of Jackson County which denied its claim for money damages for breach of a residential lease and awarded defendants, Chris Curtis, Ed Domaracki, Mike Fraser, and Carson Flugstad, the sum of $1980 plus costs on their counterclaim for constructive eviction. We affirm.

The record * * * established that Home Rentals owns approximately 300 rental properties, including a single-family residence located at 512 S. Beveridge near Southern Illinois University in Carbondale. Home Rentals agreed to rent the Beveridge house to the four defendants in this action, each of whom was a student at SIU. The terms of the agreement were governed by a written lease signed on behalf of Home Rentals by its president, Henry Fisher, in February of 1989. The lease was to commence on August 17, 1989, and to expire on August 13, 1990. Rent was fixed at $740 per month, and a $500 damage deposit was required. By payments made in April, May and June, defendants gave Home Rentals a total of $1980 to cover the damage deposit plus advance rent for the last two months of the lease term.

Under the lease defendants were to receive the premises ‘‘in good order and repair.’’ While there is no dispute that the house was in acceptable condition when the lease was signed in February, the record established that the situation had changed drastically by the time defendants attempted to take possession six months later. The first to reach the scene was Mike Fraser, who arrived in Carbondale from his home in northern Illinois on August 15. At that time the electricity had not yet been turned on, and he was not able to view the premises during daylight hours until Wednesday, August 16. What Fraser found then was a house that was not fit for human habitation.

Roaches had overrun the rooms. The kitchen was so filthy and so infested by bugs that food could not be stored there. The living room carpet smelled, and one could actually see outside through holes in the wall around the frame of the front door. The bathrooms were unsanitary, and when the water was turned on the following day, August 17, Fraser discovered that not one of the toilets in the building worked. He also discovered that one of the bathtubs did not drain at all, while another drained only slowly, and that bathroom waste water drained directly onto the floor of the basement. In attempting to explain this open drain at trial, Henry Fisher tried to assert that it was simply part of the washing machine hookup. As evidence that this was laundry-related, he pointed to white matter on the basement floor by the drain which he claimed was spilled laundry detergent. Other evidence indicated, however, that the white matter was, in fact, a mass of roach eggs.

As the remaining defendants began to arrive for the start of school, they found the same conditions discovered by Fraser. They and their friends described those conditions to the court at trial, and photographs depicting the squalid conditions were admitted into evidence. Fraser testified that he spoke with Fisher at Home Rentals on the 16th and told him that the place was uninhabitable because of the filth and the roaches. Fisher’s response was to suggest that the students buy roach bombs and cleaning supplies to take care of the problems themselves, although he did offer to reimburse them for those items and represented that he would arrange to have an exterminator spray.

Fraser contacted Home Rentals again the following day after discovering the plumbing problems. Fraser notified the company of those problems, complained again about the overall dirtiness of the house, and reported that the roach problem was even more severe than originally thought. This time he was told by the secretary that someone would be sent to ‘‘check it out.’’ By the time the lease term commenced the following day, however, defendants were still waiting for a Home Rentals representative to visit.

Hopeful that the situation might somehow be salvaged, defendants spent several days attempting on their own to make the house liveable. Although an exterminator finally appeared on Friday, August 18, or Saturday, August 19, the problem of roach infestation continued, and Home Rentals did nothing about the dirt or plumbing problems. The condition of the house was so bad that defendants were never able to spend the night there. Henry Fisher himself admitted that he would not have moved in either, at least not until after the exterminator had sprayed and the dead roaches were removed. The closest defendants came to occupying the premises was when they unloaded some of their personal property from the rental truck they were using so that the truck could be returned on time.

On Monday, August 21, defendants finally gave up. They packed up their property and sought housing elsewhere. While this was happening, someone from Home Rentals appeared at last with a plunger, presumably to work on the toilets, but by this time defendants’ patience was exhausted. They went to the Home Rentals office, advised that they would not be living in the house, and returned the keys. They also reported the condition of the house to the City of Carbondale’s Code Enforcement Division.

Following an inspection on August 23, 1989, the Code Enforcement Division notified Home Rentals that it had found numerous violations of the City’s codes and ordinances. These included open sewers in the basement, the open waste water drain from the upstairs bathroom, unclean and unsanitary conditions in the first and second floor kitchens and bathrooms, severe roach infestation, a ‘‘stopped up’’ lavatory basin, no smoke detectors, a broken window, a large hole in the wall, a structurally unsound handrail by the steps to the second floor, and various exterior surfaces which were in need of painting. The notice of violations, dated August 25, 1989, warned Home Rentals that ‘‘due to the severe nature of the violations * * * and the potential hazard they create to the health, safety and welfare of anyone occupying the structure in its present condition,’’ the house would be deemed ‘‘unfit for human habitation’’ pursuant to the Carbondale Revised Code and would be posted ‘‘occupancy prohibited’’ unless all cited violations were corrected within 72 hours.

By August 28, 1989, 11 days after defendant’s lease was to have commenced, Home Rentals finally remedied all of the violations found by the City, with the exception of the exterior painting. Although the City apparently then withdrew its threat to prohibit further occupancy, Home Rentals did not rent the property out to anyone else. Instead, it brought this action against defendants for breach of the lease. For its damages, Home Rentals claimed the sum of $6900, representing the rent due for all 12 months under the lease, less the two months’ advance rent defendants had already paid as part of their deposit. Home Rentals also asked for its costs and attorney fees of $2300.

Defendants denied Home Rentals’ allegations and raised as affirmative defenses breach of implied warranty of habitability and constructive eviction. Based on the theory of constructive eviction, they also asserted a counterclaim seeking return of the $500 damage deposit and $1480 in advance rent they had previously paid to Home Rentals. * * *

***

A constructive eviction occurs where a landlord has done ‘‘something of a grave and permanent character with the intention of depriving the tenant of enjoyment of the premises.’’ [Citation.] Because persons are presumed to intend the natural and probable consequences of their acts, constructive eviction does not require a finding that the landlord had the express intention to compel a tenant to leave the demised premises or to deprive him of their beneficial enjoyment. All that is necessary is that the landlord committed acts or omissions which rendered the leased premises useless to the tenant or deprived the tenant of the possession and enjoyment of the premises, in whole or part, making it necessary for the tenant to move. * * *

At oral argument, counsel for Home Rentals asserted that defendants did what they did simply because ‘‘the premises did not meet their expectations.’’ The inference, of course, was that defendants were overly particular and that their expectations were unrealistic. It is scarcely unreasonable, however, for tenants paying $740 per month to expect flushing toilets, sewage-free basements, and kitchens that are not overrun with roaches. These are things that Home Rentals failed to provide. What Home Rentals did provide was a house that was clearly and unquestionably unfit for people to live in. As a result, defendants had no alternative but to vacate the premises.

Home Rentals correctly points out that a tenant may not abandon premises under the theory of constructive eviction without first affording the lessor a reasonable opportunity to correct the defects in the property [citation], but such an opportunity existed here. Home Rentals’ president, Henry Fisher, admitted that he actually inspected the premises as early as August 13. * * * 

Considering the magnitude of the problems, four days was opportunity enough for Home Rentals to act. Constructive eviction has been found in analogous circumstances where an even shorter period was involved. [Citation.] We note, moreover, that there is no indication that giving Home Rentals additional time would have made any difference. In the four days before defendants left, the only action the company took at all was to send someone out to spray for bugs, which did not work, and to dispatch a man with a plunger. In the end, it was only because of the intervention by the City of Carbondale that Home Rentals implemented the necessary remedial measures.

***

For the foregoing reasons, the judgment of the circuit court of Jackson County is affirmed.

Affirmed.

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Smith and Roberson Business Law

ISBN: 978-0538473637

15th Edition

Authors: Richard A. Mann, Barry S. Roberts

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