Section 42-805 – Tenant Rights.
Section 805 of the CCRTLO is entitled “Tenant Rights”. In this section, we have a laundry list of tenant rights beginning with broad basic concepts and continuing on down to some detailed minutia. The opposite of rights are duties and these items definitely impose some obligations on landlords that will require them to adjust their leases and leasing practices.
Tenant Rights – Section 42-805 starts off innocently enough reserving to tenants any rights provided under federal or state law and then goes on to express certain new rights governed by the CCRTLO (42-805(A)).
Disclosure of Costs – the CCRTLO provides tenants with the right to certain disclosures. (42-805(B)) Cook County leases are going to have the same kind of length (25+ pages) as Chicago leases once this ordinance goes into effect.
1. Responsibility to Pay Utility Costs – the landlord shall disclose to the tenant whether the landlord or tenant will bear the responsibility to pay the cost of any particular utility. Landlords should be adjusting their leases to make clear that
2. Utility Payments Directly to the Utility – In those situations where a tenant will pay the cost of a utility and the tenant is “directly responsible to the utility company”: (a) the utility service must be individually metered to unit; and (b) the landlord must disclose the annual cost of service from the utility provider during the previous twelve (12) months in the rental agreement. (This is similar to the heating cost disclosures landlords are familiar with providing for Chicago leases).
3. Utility Payments Made to the Landlord – In those situations where a tenant will pay the cost of a utility to the landlord: (a) if the utility cost is known, the landlord must disclose the annual cost of service from the utility provider during the previous twelve (12) months in the rental agreement. (b) if utility cost is not known: if the landlord did not own the unit during the last 12 months or did not pay the utility costs in the last 12 months, the landlord may: (i) provide tenant with the cost of service for a similar dwelling unit, if known; or (ii) disclose to the tenant that the utility costs are unknown to the landlord.
4. Move in Fee Disclosure – When charging a move-in fee, the landlord must provide the tenant with an itemized list of the landlord’s “reasonable estimate” of the costs that comprise the move-in fee and shall not charge the tenant moving into the premises for costs associated with routine maintenance and the upkeep of the premises. The ordinance now codifies the concept that the landlord’s time and effort is neither quantifiable nor recoverable by the landlord as a move-in fee. It would seem that only the actual costs related to move in (in excess of routine maintenance and upkeep) like extra security can be charged.
Habitability Issues (42-805(C))
- Right to a habitable dwelling – A tenant has right to a dwelling that “materially complies” with habitability and shall have the “right to a remedy” when the property is not in material compliance with habitability standards.
- Applicable Building codes – For units in a municipality with a municipal building code, the landlord and tenant may use that municipal code as reference for determining habitability standards. For units in a municipality without a building code or unincorporated Cook County, the landlord and tenant may use the Cook County Building Code for determining habitability standards.
- The CCRTLO provides a laundry list of habitability standards similar to 5-12-110(a) of the CRLTO.
Heat Requirements (42-805(D))
The CCRTLO adopts heating requirements similar to the Chicago heat requirements found in the Chicago Heat Ordinance. From September 15 through June 1 of each year, landlords must maintain heat inside the dwelling as follows:
68 degrees from 8:30 AM to 10:30 PM
66 degrees from 10:30 PM to 8:30 AM.
Tenant Right to Possession (42-805(E))
- Inability to Deliver Possession – If the landlord fails to deliver possession to the tenant per the rental agreement, rent abates until possession is delivered and the tenant may
- terminate the rental agreement and, upon termination, the landlord shall return within 48 hours all security deposits; or
- demand performance of the rental agreement and, if the tenant elects, the tenant may maintain an action for possession of the dwelling unit against the landlord or any person wrongfully in possession and recover the damages sustained by the tenant.
- Penalty for failure to deliver possession – An “aggrieved person” may recover from the person withholding possession an amount not more than two (2) months’ rent or twice the actual damages sustained by them, whichever is greater, and reasonable attorney’s fees.
On one hand, this makes sense. If someone is withholding possession, its good that a tenant has a right to get the place back. Here’s the part that doesn’t make sense and which exposes how the ordinance is anti-landlord. A tenant who is “aggrieved” is somehow entitled to 2 months rent or twice actual damages plus attorney’s fees. Meanwhile, when a TENANT refuses to turn over possession of a rental unit, or worse, when a tenant fails to pay rent, the landlord gets a worthless judgment and is denied the opportunity to collect attorneys fees. Aren’t landlords “aggrieved persons” in certain circumstances as well? The people at Cook County don’t seem to think so.
Unlawful or Harassing Entry
If the landlord makes an unlawful entry or a lawful entry in an unreasonable manner or makes repeated demands for entry otherwise lawful, but which have the effect of harassing the tenant, the tenant may obtain injunctive relief to prevent the recurrence of the conduct, or terminate the rental agreement. In each case, the tenant may recover an amount equal to not more than two (2) months’ rent or twice the damages sustained by them, whichever is greater, and reasonable attorney’s fees.
These provisions are similar to the rights in 5-12-110(b) and 5-12-060 although the penalties for harassment is two months rent in Cook County while only one month’s rent in Chicago. Let’s remember the language from CRLTO section 5-12-060 “In each case, the tenant may recover an amount equal to not more than one month’s rent or twice the damage sustained by him, whichever is greater.” Also remember that in Section 803(A)(2) of the CCRTLO we are given a definition of “Harass or harassing”.
One-time Tenant Right to Pay and Stay. (42-805(F))
Remember that last little item that was slipped into the “Fair Notice” amendment to the CRLTO at 5-12-130(j) this last summer that provides for a one time right to “pay and stay” in the event of an eviction? Cook County provides tenants with a similar one time “get out of jail free” card. At any time “prior to the issuance” of an eviction order (although I think they mean the execution of an eviction order by the Sheriff based on the remaining language in this section), the tenant has a one-time right to cure the non-payment of rent by paying all unpaid rent, duly owed from the date of non-payment to the date of payment, together with all filing fees and costs paid by the landlord and all fees and costs expended by the landlord for service of process, but not including attorney fees.
Seriously. Why do tenants get to avoid attorney’s fees?
If the tenant makes this payment, the Court shall vacate any eviction order and dismiss the case. If a landlord refuses to provide a total amount due, the tenant may cure by making a good faith payment of the amount that the tenant believes to be due.
This section contains a number of items that will require landlords to adjust their disclosures:
1. Disclosure of who pays utilities
2. Utility Cost disclosures
3. Move-in Fee disclosure
Tune in next week as we review the section on Tenant Remedies.