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Applegate v. Inland Real Estate Corp.

OPINION FILED OCTOBER 18, 1982.

YVONNE APPLEGATE, PLAINTIFF-APPELLEE,

v.

INLAND REAL ESTATE CORPORATION, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Du Page County; the Hon. James Jerz, Judge, presiding.

PRESIDING JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:

Rehearing denied November 18, 1982.

Inland Real Estate Corporation, the defendant, appeals from a judgment holding that it had constructively evicted the plaintiff, Yvonne Applegate, from an apartment, awarding the lessee double her security deposit plus attorney fees and costs (Ill. Rev. Stat. 1981, ch. 80, par. 101), and denying Inland's counterclaim seeking damages for breach of the lease.

On October 28, 1980, plaintiff signed the lease for the term November 1, 1980, through October 31, 1981. She tendered a security deposit of $335, equal to one month's rent. At this time plaintiff asked Mary Clevenger, the building manager, if the apartment had any problem with roaches, because she didn't want to move in if so. According to plaintiff, Clevenger said that she hadn't heard anything about any roaches. Betsy Turnquist, a friend of plaintiff's who had planned to move in with her, testified that Clevenger said that the apartment didn't have any kind of bugs. Clevenger testified at first that she could not remember whether the three had discussed the possible roach problem, but later testified that she told plaintiff that there was no problem.

Plaintiff and Turnquist, along with Clevenger, had inspected the apartment several days before the signing. Plaintiff testified that the apartment then was "filthy," with broken baseboards, considerable amounts of dirt, scuff marks, and a couple of dead cockroaches, but that Clevenger told her during the inspection that it would be fixed before she moved in. Clevenger testified that she saw nothing wrong with the apartment at the time, or when she inspected it by herself two or three days before plaintiff moved in. Clevenger gave plaintiff permission to move in early without paying extra rent and plaintiff and Turnquist moved in on October 29. At this time a maintenance man who had been working in the apartment during the earlier inspection was still present, and he told them that the apartment was not ready to move in.

As soon as they started bringing in their possessions, plaintiff and Turnquist saw dozens of cockroaches, some of which they sprayed, stamped out, or caught. There was testimony that the roaches started coming out at night in the kitchen, living room, bedroom and bathroom.

Plaintiff testified that she tried to contact Clevenger several times between October 28 and November 1 but could not reach her. She moved out the evening of October 31, before the lease term technically began, thus paying no rent. Plaintiff and Turnquist testified that the problems of the apartment had not been fixed by then except that some work had been done on the front door and a closet.

Clevenger testified that plaintiff told her on November 1 that she was moving out and that Clevenger responded that if there were roaches in the apartment "we would have an exterminator come out the very next time the exterminator was scheduled." She said that plaintiff refused to wait until the exterminator came out. She also testified that she inspected the apartment shortly after plaintiff moved out and found no roaches.

The defendant withheld the security deposit despite plaintiff's requests for its return. Defendant did not succeed in rerenting the apartment until January 1981.

After finding that the plaintiff had been constructively evicted the trial judge also found that the defendant had refused to supply the itemized statement of property damages allegedly caused by plaintiff, as required by the statute (Ill. Rev. Stat. 1981, ch. 80, par. 101) and had failed to return the security deposit. He thus awarded damages in the amount of $670, twice the security deposit, plus attorney fees and costs of $482. The court denied the defendant's counterclaim for damages.

I

Defendant argues first that the trial court erred in finding that there was a constructive eviction.

• 1 A constructive eviction requires that the landlord have done something of a grave and permanent character with the intention of depriving the tenant of enjoyment of the premises. (Advertising Checking Bureau, Inc. v. Canal-Randolph Associates (1981), 101 Ill. App.3d 140, 146.) The question of whether a tenant has been constructively evicted is one of fact and the decision of the trier of fact will not be reversed unless against the manifest weight of the evidence. (John Munic Meat Co. v. H. Gartenberg & Co. (1977), 51 Ill. App.3d 413, 416.) In Munic the court stated:

"It is not essential that there be an express intention of the landlord to compel a tenant to leave the demised premises or to deprive him of their beneficial enjoyment, since persons are presumed to intend the natural and probable consequence of their acts and, accordingly, acts or omissions of the landlord making it necessary for the tenant to ...


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