Recent Changes in the Law for Eviction Defendants in Illinois

/ Bonnie Varner, LLC/

Recent Illinois Appellate Court decision are likely going to have a significant impact on the rights eviction court defendants have in asserting counterclaims against their landlords and having their case heard before a jury. The two cases I’m going to discuss are:

Milton v Therra (http://www.illinoiscourts.gov/Opinions/AppellateCourt/2018/1stDistrict/1171392.pdf)

and

Goodwin v Matthews (https://law.justia.com/cases/illinois/court-of-appeals-first-appellate-district/2018/1-17-2141.html)

Milton v Therra

This case arose out of a commercial eviction of a hairdressing studio. The landlord likely performed several illegal lockouts during the course of the litigation. Because of this, the Defendants were awarded damages for a counterclaim for lost profits and the court held the landlord in contempt. Half of the Court’s opinion is about civil contempt proceedings and what procedure is appropriate in that circumstance but the other half is about monetary counterclaims and whether Defendants in eviction proceedings can bring them. Evictions are a limited forum and very few topics are appropriate to raise there outside of questions of possession and back rent owed. The court lists the relevant claims as:

  1. claims asserting a paramount right of possession (saying the landlord does not have a greater right to the property, which is rarely argued)

  2. claims denying the breach of the agreement vesting possession in the plaintiff (saying that there is no back rent owed or a present lease violation; this is where claims about habitability of the property would be)

  3. claims challenging the validity or enforceability of the agreement on which the plaintiff bases the right to possession (saying the lease itself is not legally binding, also pretty rare)

  4. claims questioning the plaintiff’s motivation for bringing the action. (this is where a retaliatory claim, which is commonly argued, would fit)

The court held that the Defendants could not be awarded damages based on a monetary counterclaim for lost profits in their eviction proceeding because such a claim is outside the scope of an eviction court’s purview. The claim would need to be brought is a separate proceeding. The court goes on to say the monetary damages for counterclaims are general disallowed in an eviction proceeding. Because this was a commercial eviction, the Court does not address any municipal residential rental ordinances which allow for monetary damages in retaliation and habitability claims, such as the Chicago Residential Landlord Tenant Ordinance (CRLTO). Because such ordinances are not specifically addressed, it is arguable that those counterclaims are still valid. Be prepared for a judge disagreeing with you though, as many are reading Milton as disallowing all monetary counterclaims, period.

Goodwin v Matthews

This case covers a lot of topics, but the one I will discuss here is jury demands and when a court in an eviction proceeding will consider your right to a jury trial waived. Most court proceedings that allow for a jury trial will consider that right waived if the jury demand is not filed close to the beginning of the case. This case asserts what has long been the standard in eviction proceedings: your jury demand is due when you appearance is “first required.” What that means has been open to some interpretation. In my opinion, these are the two scenarios where this ruling matters to defendants in eviction court:

  1. If you come to court when you are served and ask for a continuance to get an attorney, it is my opinion that fling a jury demand on or before the next court date is still timely. That is the fact pattern of Pecoraro v. Kesner, 578 N.E.2d 53 (1st Dist. 1991), which I believe is still good law. Be prepared to argue this before the judge because there is some disagreement on this point.

  2. If you miss a court date you are served for and file a motion to vacate afterwards, your jury demand will be considered waived. That was not frequently argued before this decision. It will be now. Do not miss your court date!

What to Do

If you are a defendant served for an eviction proceeding, be sure to consult with an attorney before you go to court about your rights and what to expect. These proceedings are fast by statute and it is very important that you don’t compromise your rights or fail to understand what your rights are. Good luck!