Appeal from the Appellate Court for the Fourth District; heard
in that court on appeal from the Circuit Court of Champaign
County, the Hon. Harry E. Clem, Judge, presiding.
JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:
This cause involves a suit by Merwin O. Glasoe, a landlord, against Jerry and Diane Trinkle, his former tenants, to recover $960 in rent. The Trinkles filed an answer denying that rent was due and owing and also raised several affirmative defenses and counterclaims. Following a bench trial in the circuit court of Champaign County, the trial court entered judgment for Glasoe in the amount of $152.69. The Trinkles appealed from that portion of the judgment which dismissed their second affirmative defense and second counterclaim for failure to state a cause of action. The Trinkles had alleged in those counts that an implied warranty of habitability was a part of their lease and that they were entitled to recover damages resulting from the breach of that warranty. The appellate court affirmed (123 Ill. App.3d 132), and we allowed the Trinkles' petition for leave to appeal under Rule 315 (87 Ill.2d R. 315). Subsequently, due to the death of Merwin O. Glasoe, we allowed the Trinkles' motion to substitute Merwin M. Glasoe, the personal representative of the estate of Merwin O. Glasoe, as appellee. No brief for the appellee has been filed in this court.
The principal issue on appeal is whether the implied warranty of habitability applies to leases of residential real estate located in areas which have not enacted housing or building codes.
The following facts are pertinent to this appeal. On August 18, 1978, the Trinkles entered into an oral agreement to rent, on a monthly basis, one of three units in a triplex owned by Glasoe in St. Joseph. The Trinkles tendered a security deposit and rent and resided in the unit until October 17, 1981, when they vacated the premises. In February 1982, Glasoe sued the Trinkles alleging that they owed him rent for the months of July, August, September, and October of 1981. The Trinkles filed an answer denying that they owed rent and also raised several affirmative defenses and counterclaims.
The Trinkles' first affirmative defense was that they had been constructively evicted. Jerry Trinkle testified that when he went to light the furnace on October 15, 1981, he discovered a hole in the heating chamber and determined that it was not safe to light the furnace. He also testified that he knew Glasoe was unable to repair the furnace himself because he was in jail at the time and that Glasoe was unable to pay someone else to repair or replace it. In light of the above facts and the fact that they needed heat because one of their children was returning from the hospital, the Trinkles decided to seek another place to live. They vacated the premises on October 17, 1981, and moved to the nearby community of Fithian. The Trinkles counterclaimed for the difference between the rent at the old premises in St. Joseph and the rent they paid at the new premises in Fithian for the period of October 17, 1981, to November 30, 1981. They requested that a judgment be entered in that amount or that they be granted a setoff against the rent claimed by Glasoe.
The Trinkles' second affirmative defense was that an implied warranty of habitability applied to the premises and that Glasoe breached that warranty. They alleged that at the time Glasoe rented the unit to them and during their occupancy numerous defects and substandard conditions rendered the premises unsafe, unhealthful, and unfit for occupancy. The Trinkles presented testimony showing that: (1) the only source of heat for the living room was a space heater and that the blower on the heater stopped working during the winter of 1978; (2) the blower in the main furnace did not operate for two weeks in the winter of 1980; (3) Glasoe installed an incorrect replacement motor for the blower which caused the blower to run continuously; (4) sewage leaked through the ceiling into their bedroom and their children's bedroom on two occasions; (5) problems with the plumbing caused their toilet to overflow at various times; (6) the bathroom ceiling collapsed in 1979 and was not replaced; (7) water leaked through the ceiling into the kitchen; (8) sewage collected in an open ditch which had been dug by Glasoe; (9) sewage leaked from sewer lines in the basement into a sump pump and was then pumped into the yard; (10) the unit was infested with cockroaches and rodents; (11) the front door was difficult to open and close because it was swollen from the weather; (12) there was a large hole in the decaying floor of the back porch; and (13) the windows and doors were not properly sealed.
The Trinkles claimed that if the unit had been in a habitable condition, the fair rental value of the unit would have been equal to the rent they agreed to pay Glasoe. They alleged that the proper rental value of the unit in its actual condition throughout the tenancy had been an average of 60% of the agreed rental. The Trinkles therefore counterclaimed for the difference between the aggregate rent they actually paid Glasoe and the aggregate proper rental value. In addition, they counterclaimed for the costs of replacing the beds and bedding damaged by the leaks and the increased utility bills incurred as a result of the problems with the space heater and furnace.
The Trinkles' third affirmative defense was that Glasoe had promised as part of the lease agreement to lower the living room ceiling and to replace the front door. They alleged in their counterclaim that they were damaged by Glasoe's failure to make those repairs because the living room was less energy efficient and because their ability to enter and exit the unit was hindered. They requested a judgment in the amount of those damages or a setoff in the same amount against the rent claimed by Glasoe.
The Trinkles' fourth affirmative defense was that they had tendered a security deposit to Glasoe and that he had failed to return it to them although they had left the premises in a clean and undamaged condition. They counterclaimed for a judgment in the amount of the security deposit or for a setoff in the same amount against the rent claimed by Glasoe.
The Trinkles' last counterclaim sought indemnification for collect telephone calls made by Glasoe to the Trinkles' telephone. They requested a judgment in the amount of those calls or a setoff in the same amount against the rent claim by Glasoe.
The trial court rendered its judgment on April 13, 1983. It first addressed Glasoe's claim that $960 in rent was due and owing for the months of July through October of 1981. After deducting certain credits due the Trinkles, the court determined that they owed Glasoe $458.44 for unpaid rent. The credits represented a newspaper bill the Trinkles had paid for Glasoe and bond they had posted for him on two occasions. As to the Trinkles' first affirmative defense and counterclaim, the court held that since a major component of the rental unit (the furnace) was not available to the Trinkles, they were constructively evicted by Glasoe. The court awarded the Trinkles damages in the amount of $157.01. This amount represented the difference between the rent the Trinkles had paid Glasoe for the old premises in St. Joseph and the rent they paid at the new premises in Fithian for the period of October 17, 1981, to November 30, 1981. With regard to the Trinkles' second affirmative defense and counterclaim, the trial court held that since St. Joseph did not have a building code that applied to rental housing, the implied warranty habitability could not be raised.
The trial court did not consider the Trinkles' third affirmative defense and counterclaim because the Trinkles had withdrawn them during trial. As to the Trinkles' fourth affirmative defense and counterclaim, Glasoe stipulated that the Trinkles were entitled to a full refund of their security deposit in the amount of $110. With regard to the Trinkles' last counterclaim, Glasoe also stipulated that he owed them $38.74 for collect telephone calls. The trial court deducted the above setoffs from the rent due Glasoe and entered judgment for him in the amount of $152.69, plus court costs.
This court has recognized the implied warranty of habitability in a variety of situations. In the landlord-tenant context, it was held in Jack Spring, Inc. v. Little (1972), 50 Ill.2d 351, that the implied warranty of habitability applied to leases, both oral and written, of multiple-unit dwellings. In Pole Realty Co. v. Sorrells (1981), 84 Ill.2d 178, this court extended the warranty to leases of single-family dwellings. Outside the landlord-tenant context, this court held in Petersen v. Hubschman Construction Co. (1979), 76 Ill.2d 31, that the implied warranty of habitability applied to contracts for the sale of new homes by builder-vendors. In Park v. Sohn (1982), 89 Ill.2d 453, it was held that the warranty applied to the sale of a house by a builder-vendor even though he had lived in the house for approximately two years before the ...