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04/28/87 the Housing Authority of v. Doris Melvin

April 28, 1987

THE HOUSING AUTHORITY OF THE CITY OF EAST ST. LOUIS, PLAINTIFF-APPELLEE

v.

DORIS MELVIN, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

507 N.E.2d 1289, 154 Ill. App. 3d 999, 107 Ill. Dec. 920 1987.IL.550

Appeal from the Circuit Court of St. Clair County; the Hon. Robert Saunders, Judge, presiding.

APPELLATE Judges:

JUSTICE JONES delivered the opinion of the court. KARNS, P.J., and WELCH, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE JONES

The plaintiff, the Housing Authority of the city of East St. Louis, filed a complaint in forcible entry and detainer on March 15, 1985, against Doris Melvin seeking possession of apartment 40-A, Roosevelt Homes, a public housing development located in East St. Louis, and the sum of $425.25 in rent due as well as costs. The defendant counterclaimed, seeking $1,116 and the costs of the action, alleging that, as a result of the plaintiff's breach of the implied warranty of habitability, she had paid $1,116 in rent in excess of the value of the tenancy. In a "second counterclaim" she sought an abatement of rent in the amount of $1,116, alleging that, as a result of the plaintiff's breach of the lease, she had paid that amount in excess of the value of the tenancy. The defendant remained in possession of the premises throughout the proceedings.

A bench trial was held on July 18, 1985, of which no verbatim transcript is available. A report of the proceeding was prepared by defendant's attorney and certified as accurate by the trial court.

The evidence showed that the defendant pays $62 per month as rent, which is assessed on the basis of the tenant's income as required under a formula established by the Federal government. According to the report of proceedings, Michael Aldridge, assistant manager for the plaintiff, testified to the effect that "Ms. Melvin last paid rent in the amount of $100 in January of 1985. She owes $735 excluding court costs because she owes some back rent." The witness did not know, however, for what months the defendant owed rent. Called as an adverse witness, the defendant testified that she had resided in the apartment in question for the past 10 years and that she had last paid rent in January of 1985 but had not attempted to pay rent since that time. The apartment is a two-level four-bedroom one which she shares with her four sons.

The defendant called as a witness Waldo Dotts, a housing inspector for the city of East St. Louis, who testified that he had inspected the defendant's apartment on May 15, 1985, and had officially disapproved the unit for occupancy, having observed the following problems: no lavatory in the bathroom; ceiling plaster falling in the utility room and electrical wires hanging from the junction box; live wires hanging from the ceiling in the living room and a leaking roof in the living room; kitchen window in need of repair. He stated that the front door could not be locked because of a need for knobs and locks. At the time of the inspection workmen from the Housing Authority were exterminating in the unit. The defendant called as an adverse witness Vera DePriest, the executive director of the East St. Louis Housing Authority, who testified to familiarity of the lease in question, paragraph 10 of which provides for an "abatement of rent in proportion to the seriousness of the damage and loss in value as a dwelling in the event repairs are not made" by the management as provided in the lease. The witness testified to numerous dates, primarily in January of 1985, on which the defendant had made complaints concerning problems such as the absence of water and the running of water into the "electric box." No workman was dispatched to investigate the complaints.

Testifying in her own behalf, the defendant stated that she is 42 years of age, that her four sons are aged 13, 14, 18, and 20, that she has been separated from her husband for eight years, and that she earns approximately $3.70 per hour as a nursing assistant at an East St. Louis hospital. She receives between $160 and $201 per month in food stamps. She described conditions in the apartment, including, inter alia, the presence of rats, one of which bit her 14-year-old son as he slept, another of which is pictured in a photograph included in the record on appeal, after having fallen in a bucket set out to collect water dripping from the ceiling. According to the defendant, water ran downstairs from the leaking bathtub into the utility room and into the "junction box," causing the emission of a burning odor. The defendant testified that she had stopped paying her rent after January of 1985 because she was unable to get the plaintiff to make repairs. On cross-examination she testified that she did not warn the plaintiff in advance that she would not be paying rent if repairs were not made and that she did not obtain independent estimates of the cost of repairs. She testified on cross-examination that the apartment had no water for a month in January of 1985. Some repairs to the apartment have been made.

In its judgment, entered October 3, 1985, the trial court found that "[r]ent payable during the period in issue was at the rate of $62.00 per month (which translates to $2.06 per day), an extremely low rental in or out of the real estate rental market, and represents a reasonable rental value of the premises before, after, and during the breach of warranty as hereinafter stated." The trial court found further that the plaintiff "failed to maintain the demised premises pursuant to the Management's Obligations paragraph [paragraph eight] of the lease, and, as a result, defects of a substantial nature rendered the premises unsuitable for occupancy, thereby breaching the warranty of habitability." The court found "[t]hat said breach of the warranty of habitability constituted a constructive eviction of the defendant by plaintiff, but, nevertheless, the defendant has chosen to and has continued to and still resides in the said apartment, and has made no rent payment to plaintiff since paying $100 on January 10, 1985, and there remains a present balance of $735.25 arrearage of rents unpaid." The court found the case of Glasoe v. Trinkle (1985), 107 Ill. 2d 1, 479 N.E.2d 915, to be of limited application to the instant case since the defendant in Glasoe had vacated the premises upon the occurrence of the conditions constituting a breach of the warranty of habitability by the landlord and Glasoe involved a rental agreement between individuals in the private sector, "a more commercial landlord-tenant relationship than the one under consideration involving a public housing authority in which the method of determining rentals to be charged is based upon income to accommodate low to modest income individuals -- a unique relationship involving public policy issues, as distinguished from the instant case." The court stated that if the implied warranty is found to be breached, the tenant who remains in possession is liable for "the reasonable (rental) value of the premises" and that "[t]he rent charged defendant before, during, and after the breach of warranty is even less than the fair rental value." Judgment was entered for the plaintiff and against the defendant in the sum of $735.25 plus costs and against the defendant-counterplaintiff upon her counterclaims.

In a post-trial motion the defendant stated that the court in its judgment did not discuss the issue of damages resulting from the breach of the terms of the lease, that the court had found that the plaintiff-counterdefendant had failed to maintain the apartment pursuant to the lease, and that the defects were so substantial that the unit was rendered unsuitable for occupancy. The defendant stated further in her post-trial motion:

"7. Paragraph ten of the lease provides that when defects are hazardous to life, health, and safety of the occupants, the tenant is entitled to an abatement in rent in proportion to the seriousness of the damage and loss in value as a dwelling . . ..

8. Under the above terms of the lease, the court is required to use the 'percentage reduction in use' method (rent paid by tenant reduced by a percentage due to defects) to calculate damages rather than the 'difference in value' approach (fair rental ...


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