APPEAL from the Circuit Court of Cook County; the Hon. EUGENE
WARD, Judge, presiding.
MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
Defendant appeals from an order striking her second affirmative defense and counterclaim to a complaint seeking possession of a single-family residence and from the entry of summary judgment in favor of plaintiff on the said complaint. On appeal, she contends that the trial court erred in holding that as a matter of law there is no implied warranty of habitability in the lease of a single-family residence. Plaintiff cross-appeals from an order denying reconsideration of its motion for costs and fees because of defendant's allegedly false and fraudulent pleading. On appeal, plaintiff argues that the trial court erred in failing to hold a hearing on the motion for costs and fees.
The following facts are pertinent to a disposition of this appeal.
On May 17, 1978, plaintiff filed a complaint alleging that defendant was unlawfully withholding the single-family residence located at 5951 S. Justine, Chicago, Illinois, from plaintiff and claiming possession of the said property. On June 2, 1978, defendant filed her answer, first and second affirmative defenses and counterclaim. In her answer defendant denied that she was unlawfully withholding possession of the premises and that plaintiff was entitled to possession thereto. As her first affirmative defense defendant alleged that she was not served with any notice terminating her tenancy for nonpayment of rent or otherwise. As a second affirmative defense defendant alleged that plaintiff was not entitled to possession of the premises because, as a result of plaintiff's breach of an implied warranty of habitability, no rent was due and owing. In support of this affirmative defense, defendant alleged that commencing in January 1976 and continuing to the present time, the premises at 5951 S. Justine "have been at various times to various degrees, in substantial violation of the Municipal Code of the City of Chicago." Specifically, she alleged the following violations: deteriorated roof with holes and rotted boards; loose windows with rotted frames and broken sashes; cracked and broken foundation permitting entry of rats and other rodents; holes, cracks and rotting floor boards in bathroom on second floor; broken, cracked and loose plaster on walls and ceiling of upstairs staircase; broken kitchen sink; nonfunctioning bathroom sink; malfunctioning plumbing system causing "back up"; unsanitary and noxious odors from basement; defective and dangerous drainage pipe; inadequate covering on ventilation pipes; failure to provide screens for doors and windows from April 15 to November 15; failure to exterminate; inadequate heating facilities; and defective eaves. For each of the listed violations defendant cited the section of the municipal code allegedly violated.
Defendant further alleged that as an immediate and proximate result of the claimed code violations the fair market rental value of the premises had been reduced by 50% from January 1976 to the present. Defendant finally alleged that she had "paid plaintiff rent far in excess of the value of the premises and no money is due or owing to plaintiff from defendant for rent or otherwise."
In her counterclaim defendant alleged that as a result of plaintiff's breach of an implied warranty of habitability the value of her tenancy was reduced in the amount of $2,780. As further result of the breach she alleged that she had been forced to pay $80 for extermination services and $1200 in excessive gas bills and that she had been physically and emotionally injured in the amount of $1,000. In the prayer for relief to her counterclaim, defendant sought money damages, costs and attorney's fees and a writ of injunction ordering plaintiff to operate said building in substantial compliance with the Municipal Code of the City of Chicago.
Plaintiff subsequently moved to strike the answer and counterclaim. On July 11, 1979, the trial court granted the motion to strike as to the second affirmative defense and counterclaim because "as a matter of law the implied warranty of habitability does not apply to the leasing of a single family residence." The trial court allowed the answer and first affirmative defense to stand. The trial court denied defendant's motion to reconsider the order striking the counterclaim and second affirmative defense.
The trial court subsequently granted summary judgment in plaintiff's favor on the complaint, but denied plaintiff's motion for fees and costs because of allegedly false and fraudulent pleadings by defendant. Defendant appeals from the order granting summary judgment in favor of plaintiff and from the order striking the second affirmative defense and counterclaim. Plaintiff appeals from the order denying fees and costs.
Defendant first contends that the trial court erred in striking her second affirmative defense and counterclaim for the reason that there is no implied warranty of habitability contained in the lease of a single-family residence. She argues that the reasoning of the Supreme Court of Illinois in Jack Spring, Inc. v. Little (1972), 50 Ill.2d 351, 280 N.E.2d 208, is applicable to the lease of a single-family residence as well as to the lease of a multiple-unit dwelling. In Spring the court held:
"[I]ncluded in the contracts, both oral and written, governing the tenancies of the defendants in the multiple unit dwellings occupied by them, is an implied warranty of habitability which is fulfilled by substantial compliance with the pertinent provisions of the Chicago building code. We hold further that the defendants' answers sufficiently plead the existence and breach of the implied warranties. The issues raised were germane to the decisive question of whether the defendants were indebted to plaintiffs for rent and the trial court erred in striking the affirmative defenses alleging breach of the implied warranty." 50 Ill.2d 351, 366, 280 N.E.2d 208, 217.
A careful analysis of the Spring opinion reveals that the court based its decision upon both an analogy to its decision in Schiro v. W.E. Gould & Co. (1960), 18 Ill.2d 538, 165 N.E.2d 286, and upon the reasoning of the United States Court of Appeals for the District of Columbia in Javins v. First National Realty Corp. (D.C. Cir. 1970), 428 F.2d 1071. We will, therefore, examine Schiro and Javins to determine whether the reasoning of those decisions is applicable to single-family residences as well as to multiple-unit dwellings.
In Schiro plaintiff entered into a contract for the purchase of certain real property upon which defendants promised to construct a residence. Prior to accepting a deed from defendants, plaintiff discovered that the water and sewerage system did not conform to the city code. Plaintiff thereupon tendered payment of the agreed purchase price and sought a court order compelling defendants to install a water and sewerage system which conformed with the city code. Defendant moved to strike the complaint for failure to state a cause of action, arguing that the contract of purchase did not require that such a system be installed. In reversing the trial court's order of dismissal, the Supreme Court of Illinois stated:
"It is settled law that all contracts for the purchase and sale of realty are presumed to have been executed in the light of existing law, and with reference to the applicable legal principles. (91 C.J.S. 1032.) Thus, the law existing at the time and place of the making of the contract is deemed a ...