Appeal from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County,
the Hon. Edward M. Fiala, Jr., Judge, presiding.
MR. JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied June 4, 1981.
Plaintiff, the city of Evanston (City), filed a complaint in the circuit court of Cook County seeking declaratory and injunctive relief against Create, Inc. (defendant), a real estate broker and management firm, for its violation of Evanston's Residential Landlord and Tenant Ordinance (Ordinance). Defendant moved to dismiss the action claiming that the Ordinance was an invalid exercise of home rule power under article VII, section 6(a), of the Illinois Constitution of 1970 (Ill. Const. 1970, art. VII, sec. 6(a)). The circuit court granted summary judgment in favor of the City and issued a writ of injunction against further violations of the Ordinance by the defendant. On appeal, the appellate court affirmed. (84 Ill. App.3d 752.) We allowed defendant's petition for leave to appeal.
This case presents one question: Is an ordinance of a home rule unit of government valid if it imposes certain conditions upon a rental lease agreement negotiated between a landlord and tenant? Defendant claims that "An Act to revise the law in relation to landlord and tenant" (Ill. Rev. Stat. 1979, ch. 80, par. 1 et seq.), passed by the General Assembly, prevents a home rule unit from legislating in the area of landlord-tenant relations. It argues that this area is one of far-reaching statewide interest which requires exclusive State control. Defendant also asserts that the Ordinance impermissibly interferes with the rights of private parties to contract, places a burden on the administration of justice, and has extraterritorial effect.
The goals sought to be achieved by the City in enacting the Ordinance are expressed in section 23 1/2-1.102, where it states:
"It is the purpose of this Ordinance and the policy of the City of Evanston, in order to protect and promote the public health, safety and welfare of the citizens in the City, to establish rights and obligations of the landlord and the tenant in the rental of dwelling units and to encourage the landlord and the tenant to maintain and improve the quality of housing."
In its complaint, the City specifies certain provisions of the Ordinance which were violated by defendant's lease agreement:
1. The lease did not have attached, as required, a copy of the Evanston Residential Landlord and Tenant Ordinance. (Sec. 23 1/2-5.103.)
2. Upon the giving of a general notice, the lease allows the landlord access to a tenant's apartment within the last two months of a tenancy upon 15 minutes' notice; otherwise, upon a 24-hour notice. (The Ordinance requires the landlord to "give the tenant at least two days notice of his intent to enter." (Sec. 23 1/2-2.103.)
3. The lease excuses the landlord from mitigating his damages in the event of abandonment or subletting by the tenant. (The Ordinance requires that the landlord "make a good faith effort to rent it at a fair rental." Sec. 23 1/2-4.103.)
4. The lease allows the landlord the right to terminate the tenancy upon giving a 30-day notice. This right is not dependent upon any breach of the lease by the tenant. The landlord is not required to notify the tenant of his lack of intent to renew the lease before the end of its term. (The Ordinance requires that, upon a material breach of the lease by the tenant, the landlord must give the tenant a 45-day notice, in writing, of his intent to terminate the lease. The Ordinance also requires the landlord to send a written notice to the tenant 30 days prior to the expiration of the term of the lease of his intent not to renew the lease.
5. The lease provides for treble damages to the landlord in the event of a holdover tenancy. (The Ordinance provides that in case of holdover a landlord may bring an action for possession and, if the tenant's holdover is wilful, the landlord may recover either two months' rent or twice actual damages, whichever is greater. Sec. 23 1/2-4.301.)
6. The lease provides that the landlord may, upon five days' notice to the tenant, pursue remedies for nonpayment of rent. (The Ordinance requires a 10-day ...