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Mcardle v. Courson





APPEAL from the Circuit Court of Vermilion County; the Hon. RITA B. GARMAN, Judge, presiding.


Rehearing denied April 21, 1980.

On January 17, 1978, plaintiff Owen McArdle filed a complaint in forcible entry and detainer in the circuit court of Vermilion County alleging that defendant Carl Courson was withholding possession of a building owned by plaintiff and owed him rent. The defendant's answer stated that under the terms of the lease he did not owe the plaintiff any rent. Also, the defendant filed a counterclaim, alleging that failure of the plaintiff to maintain the roof in the condition agreed upon resulted in damage to him. After a bench trial, the trial court entered an order which awarded the plaintiff possession, $4,225 for back rent, and the cost of the lawsuit, and denied the defendant's counterclaim.

Defendant appeals, asserting (1) the trial court's finding that plaintiff maintained the roof in as good repair as required by the lease was contrary to the manifest weight of the evidence; (2) because of plaintiff's breach of the foregoing term of the lease, defendant was entitled as a matter of law to withhold rent while retaining possession; and (3) the court's order terminating the lease was an improper forfeiture.

The evidence at trial showed that the parties entered into the lease in question on March 12, 1970. The plaintiff, landlord, agreed to rent a building in Westville, Illinois, to the defendant, tenant, for $325 per month for five years. Pursuant to an option in the lease, the defendant renewed the lease for an additional five years. An addendum to the lease stated that the plaintiff would sell the building and land that defendant was leasing for $10,000 provided and subject to the defendant renting said premises for the 10-year period.

After the defendant renewed the lease for the additional 5-year period, he subleased the premises to William Carter and Dennis Shanks on February 1, 1976. At trial, Shanks testified that he started having trouble with the roof leaking around March 1976. He stated that although Mr. Haggerty, a roof contractor and repairman, fixed the roof numerous times, it would resume leaking. Shanks went on to testify that the water leakage caused damage to his merchandise. On August 9, 1977, the subtenants wrote the defendant a letter stating that if the problem was not corrected, they were going to terminate the lease with the defendant. On September 16, 1977, the subtenants notified the defendant in a letter that they elected to terminate and cancel their lease.

Shanks did not make any effort to relocate his business, a hardware store. He testified that he did not think any of the other buildings in Westville were big enough for his store, and that if he had not had water problems, he would not have terminated the lease.

Plaintiff testified that he lives in Texas and has been away from Westville since 1961. He stated that he gave the subtenant the authority in May 1977 to have the roof fixed anytime it leaked. He also stated that he had received three letters from the defendant's attorney which informed him of the problems the subtenant was having with the roof and stated that he was in breach of paragraph 10 of the lease. In relevant part, paragraph 10 states: "The Landlord agrees to maintain in good repair at the Landlord's cost the roof * * * the ceilings * * * and structural portions of the demised premises during the term of this lease and any extension thereof."

The plaintiff testified that the defendant stopped paying rent around November 1977.

Haggerty, the roof contractor and repairman, testified that he had an agreement with the plaintiff to repair the roof whenever he was asked to and then bill the plaintiff for his work. He stated that he may have been out to work on the roof 10 times since 1970, and that the "problem has tended to get worse as time goes on and the roof gets older." However, he said that he did not think he had worked on the roof more than four times while subtenant Shanks was occupying the building. He went on to testify that at one time it would cost $3,000-$4,000 for a less expensive roofing job but now it would cost in the neighborhood of $20,000-$30,000 for a totally new roof. Another contractor, Kenneth Divan, testified that the building needed a new roof. He stated that he got a bid of $1,850 from Danville Sheet Metal for a new roof on the building.

The defendant testified that he still has possession of the building and he has sublet it since the time Shanks left. He said the roof was still leaking.

Regardless of the efforts made to repair the roof, the evidence is undisputed that it continued to leak. Such a roof is not maintained in "good repair." We conclude that the trial court's determination to the contrary is, itself, contrary to the manifest weight of the evidence.

Given that the plaintiff did not maintain the roof in "good repair," the next issue we must decide is whether the defendant properly withheld the rent from the plaintiff while still maintaining possession of the premises. Defendant relies upon the provisions of paragraph 23 of the lease, the substance of which was to provide that if the plaintiff, landlord, breaches his duty to maintain the roof in "good repair," then the tenant "shall have an election to either terminate and cancel this lease * * * or the tenant may remedy said breach * * * and the cost of such action shall be deducted by the tenant from the unpaid rent * * *."

• 1 Defendant maintains that paragraph 23 should be construed to authorize him, upon breach of the covenant to repair, to withhold rent and then make repairs in the future. We recognize that the lease should be most strongly construed against the lessor who drafted it. (South Center Department Store v. South Parkway Building Corp. (1958), 19 Ill. App.2d 61, 153 N.E.2d 241.) However, even applying that rule, we can only construe paragraph 23 to require action by the lessee to make the repairs to be ...

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