APPEAL from the Circuit Court of Cook County; the Hon. MYRON
T. GOMBERG, Judge, presiding.
MR. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:
This is a forcible detainer action. Plaintiff, Robert W. Daehler, is the owner of an industrial building located at 3550 West Jarvis Avenue in Skokie, Illinois, which he purchased from Joseph Holleck on November 1, 1977, and leased to plaintiff, Stevens Packaging, Inc. Plaintiffs brought this action against the tenant, defendant Michael Oggoian, for possession of the building and for rent allegedly due. A verdict was directed for plaintiffs and a judgment for possession and for rent was entered. The defendant appeals.
Throughout the trial court proceedings, Daehler contended that when he purchased the demised premises from Joseph Holleck on November 1, 1977, any written lease defendant may have had with Holleck had previously expired and defendant was occupying the building only as Holleck's month-to-month tenant, at $1800 per month rent. Daehler further maintained that after he bought the property from Holleck, he told defendant that he was terminating his month-to-month tenancy and gave defendant proper notice to quit the premises by December 31, 1977. He also informed defendant that if he stayed beyond December 31, 1977, his monthly rent would be $5200. Defendant nevertheless remained in possession after December 31 and did not pay the $5200 monthly rent for January and February, 1978. Plaintiffs successfully contended at trial that this series of events entitled them to possession and rent for January and February in the amount of $10,400.
In his verified answer, defendant Oggoian denied that plaintiffs were entitled to possession or rent and asserted three affirmative defenses. The first affirmative defense alleged that defendant was a holdover year-to-year tenant; the second, that a new two-year lease was entered into; and the third, that plaintiffs were estopped from denying defendant's right to possession.
Prior to trial, plaintiffs presented a motion in limine, asking the court to forbid defendant or his attorney from mentioning or referring at trial to "any conversations, dealings, agreements and leases" between defendant Oggoian and Holleck, the previous owner, and further requesting that defendant be prohibited at trial from claiming any interest or right in the demised premises other than a month-to-month tenancy. After a hearing on the evidence defendant intended to rely on to prove his affirmative defenses, the trial court granted plaintiffs' motion in limine, and, because defendant could only establish his affirmative defenses with the evidence which the court had excluded in its ruling on the motion in limine, the court granted plaintiffs' motion to strike the affirmative defenses. For the same reason, the court also refused to allow defendant to add as a fourth affirmative defense that he was entitled to possession beyond December 31, 1977, under a renewal lease which he had acquired from Holleck by exercising an option to renew contained in his original lease.
At trial, Daehler testified that in person and by letter on November 3, 1977, and again by letter on both November 28, 1977, and December 28, 1977, he had informed defendant that defendant was a month-to-month tenant, that plaintiff expected him to vacate by December 31, 1977, and that if he stayed beyond December 31 the rent per month would be $5200. Daehler further testified that on January 3, 1978, he personally delivered to defendant a landlord's five-day notice to quit, and that he delivered a second five-day notice to quit on February 8, 1978. Daehler also stated that he had received defendant's $1800 rent payments for November and December, but that defendant had never offered to pay $1800 for January and February of 1978. Defendant Oggoian testified that he had offered to pay $1800 as rent in January and again in February, but that Daehler had refused to accept the payments.
At the close of the evidence, the court directed a verdict for plaintiffs and entered judgment for possession and for January and February rent in the amount of $10,400.
On appeal, defendant Oggoian contends that the trial court committed reversible error in granting plaintiffs' motion in limine, in striking defendant's three pleaded affirmative defenses and in refusing to allow him to add a fourth affirmative defense.
1, 2 A forcible entry and detainer action is designed to resolve which party has the right to possess certain real property. A claim for rent may also be joined. Under the language of the statute that a defendant may "give in evidence any matter in defense of the action," but that "[n]o matters not germane to the distinctive purpose of the proceeding shall be introduced" (Ill. Rev. Stat. 1977, ch. 57, par. 5), a defendant may raise defenses which challenge the plaintiff's right to possession or rent. Clore v. Fredman (1974), 59 Ill.2d 20, 25, 319 N.E.2d 18, 21; Jack Spring, Inc. v. Little (1972), 50 Ill.2d 351, 359, 280 N.E.2d 208, 213.
Defendant's first affirmative defense alleged that he had a written lease of the demised premises from Joseph Holleck for a term beginning October 1, 1975, and ending August 31, 1977, and that after August 31, 1977, he continued to occupy the premises and to pay rent, which was accepted by Holleck, thus creating a year-to-year tenancy for the period beginning September 1, 1977, and ending August 31, 1978. He also alleged that he has at all times complied with the terms of the lease, including making, or offering to make, all payments required.
3, 4 When a tenant remains in possession after the expiration of his lease and continues to make rent payments which are accepted, the law generally implies that the lessor has elected to renew the lease. (Sheraton-Chicago Corp. v. Lewis (1972), 8 Ill. App.3d 309, 311, 290 N.E.2d 685, 686.) A person in possession under a lease ordinarily may enforce the lease against someone who subsequently purchases the property, regardless of whether the lease has been recorded. Burnex Oil Co. v. Floyd (1969), 106 Ill. App.2d 16, 21, 245 N.E.2d 539, 543.
Plaintiffs argue that when a tenant remains in possession and continues to pay rent after the expiration of his lease, but at the same time carries on negotiations with the lessor for a new lease, such negotiations negate the possibility of any acquiescence or election by the lessor to create a holdover tenancy. Plaintiffs further argue that the verified allegations in defendant's second affirmative defense are a judicial admission by him establishing such negotiations. In that defense, defendant alleged that prior to the expiration date of his original lease he and Holleck began negotiating for a new lease and that a new lease resulted.
5 We agree with plaintiffs' contention. In Yarc v. American Hospital Supply Corp. (1974), 17 Ill. App.3d 667, 307 N.E.2d 749, in his original verified complaint plaintiff alleged negotiations for a new lease. In his amended complaint, he alleged a holdover tenancy. The court held that even though the original complaint was superseded by the amended complaint, the verified allegations of negotiations for a new lease were binding judicial admissions and negated any possibility of a holdover tenancy. The same is true here. The verified allegations of the second affirmative defense of negotiations for a new lease are binding judicial admissions which render insufficient the allegations of the first affirmative defense of a holdover tenancy. The trial court properly granted plaintiffs' motion in limine so far as it relates to the first affirmative defense and properly struck that defense.
As stated, defendant's second affirmative defense alleged that prior to the expiration date of his original lease he and Holleck began negotiating for a new two-year lease. Holleck originally submitted a new lease, a copy of which is attached to defendant's answer. A letter from Holleck's attorney stating that Holleck was willing to pay the real estate taxes if the monthly rent was set at $1800 is also attached. Defendant was ready to execute the lease and was informed by Holleck that a lease was being drafted and that Daehler, who was buying the property, would "finalize" the lease with defendant in accordance with the terms of the attached lease and letter. Defendant relied on Holleck's representations, continued to occupy the premises and pay rent until Daehler purchased the property and informed defendant that the rent would not be $1800, as agreed with Holleck, but $5200 per month. Defendant made or offered to make all payments and comply with all terms ...