Therefore, the mistake of law doctrine does not prevent plaintiffs from recovering rental overpayments.
Computation of Rent Overcharges
The parties disagree over the base upon which plaintiffs' claimed damages are to be computed. The leases provided that De Anza was entitled to an annual rent increase based on the CPI. In some years De Anza did not increase rent to the maximum authorized. Plaintiffs contend that De Anza waived its right to the higher rent and thus they are entitled to damages based upon the difference between what they actually paid and what they should have paid, rather than what De Anza could have charged and what they should have paid in the years in which they were overcharged. De Anza contends that the damages ought be based on the difference between what plaintiffs actually paid and what De Anza could have charged during the years it charged the illegal so-called market rate rentals.
Restitution damages are designed by their nature to be equitable so as to prevent one party from being unjustly enriched at the expense of the other. Accordingly, neither party is entitled to a windfall. Had De Anza charged plaintiffs the highest rent it was allowed under the leases, each succeeding year would be higher because each increase is based on the CPI times the previous year's rent. Under the statute, plaintiffs were entitled to be informed of the hypothetical maximum rent to which they were subject in future years, not what they would actually have to pay if it was less. De Anza's violation of the Act was charging rents in excess of that hypothetical figure. The Act does not compel and It would not be fair or equitable to require De Anza to pay higher restitutionary damages because it did not charge plaintiffs the maximum rent that it was legally allowed to charge. Accordingly, plaintiffs' damages are to be computed by deducting the rentals paid by plaintiffs minus the maximum hypothetical rent De Anza could have charged during the time in question.
The issue is whether there is a statutory basis for awarding pre-judgment interest because without such there is no authority under Illinois law to award such interest. U.C. Castings Co. v. Knight, 754 F.2d 1363, 1376 (7th Cir. 1985). Plaintiffs look to Ill.Rev.Stat., ch. 17, § 6402 as authority for pre-judgment interest here. This statute authorizes pre-judgment interest on "moneys . . . due on any . . . instrument in writing. . . ." Plaintiffs claim that their leases are such "instruments" in writing. However, De Anza owes money to plaintiffs, not under but in spite of the express terms of an instrument in writing, only because a statute of the State of Illinois voided a provision of the lease. Thus plaintiffs' citation to Montgomery Ward & Co., Inc. v. Wetzel, 98 Ill. App. 3d 243, 53 Ill. Dec. 366, 423 N.E.2d 1170 (1st Dist. 1981), is inapposite. In that case, a plaintiff was claiming money from a defendant under an express provision of a lease agreement, which was an instrument in writing.
Accordingly, plaintiffs' claim for prejudgment interest is denied.
1987 Standard Form Lease
De Anza claims that in 1987, during the pendency of this suit, it offered plaintiffs a new lease that had been reviewed by plaintiffs' counsel. Apparently, certain of the plaintiffs entered into these new leases after voluntarily agreeing to the termination of their existing leases. There were certain changes in the proposed leases of a non-rental nature that could have economic value. In return, the new leases gave De Anza certain rights to raise rents that were more favorable than had previously existed. De Anza claims that these plaintiffs have waived any claim for damages occurring after these 1987 leases went into effect. Plaintiffs do not make a specific response to this claim.
The Act appears to provide no impediment to a tenant who wishes voluntarily to terminate his lease and enter into a new lease. Section 8, in fact, gives a tenant an unfettered right to terminate his lease for any reason at all (subject to a 30-day notice to the park owner). If a tenant voluntarily chose to terminate his lease, perhaps with the thought of obtaining a better overall deal in exchange for higher rents, the Act appears to allow him to do so. The new lease then would be the lease referred to in Section 6 that the landlord must provide to the tenant. The key to the legality of this procedure would be the voluntary nature of the tenant's decision to terminate. Under the facts set forth above, where the tenant acted under advice of counsel while his suit was pending, voluntariness would be presumed. Accordingly, any tenant that fits the description in De Anza's brief is foreclosed from recovering damages for any period after January 1, 1988, the effective date of the new leases. Any other interpretation would deny a tenant a right to renegotiate his lease for what he considers more favorable terms.
Other Objections to the Proposed Judgment
De Anza has made a number of specific objections to the form of the proposed judgment. Because plaintiffs have agreed with some of these objections, and this ruling has rendered others moot, the court is uncertain as to what disputes remain unresolved, if any. The parties are therefore ordered to consult with one another and try to present a judgment order which is agreed as to form and is consistent with this order.
IT IS SO ORDERED.