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06/28/96 MICHAEL FRIEDMAN v. KRUPP CORPORATION

June 28, 1996

MICHAEL FRIEDMAN, TODD SELTZER AND JULIE PENER, INDIVIDUALLY, AND ON BEHALF OF ALL OTHER PERSONS SIMILARLY SITUATED, PLAINTIFFS-APPELLANTS,
v.
THE KRUPP CORPORATION, A MASSACHUSETTS CORPORATION; AMERICAN NATIONAL BANK & TRUST CO. OF CHICAGO, AS TRUSTEE UNDER TRUST NO. 56893; KRUPP REALTY LIMITED PARTNERSHIP-V, A MASSACHUSETTS LIMITED PARTNERSHIP; SOUTH CHICAGO SAVINGS BANK, AS TRUSTEE UNDER TRUST NO. 11-1780; KRUPP REALTY PARK PLACE-CHICAGO LIMITED PARTNERSHIP, AN ILLINOIS LIMITED PARTNERSHIP; AMERICAN NATIONAL BANK & TRUST CO. OF CHICAGO, AS TRUSTEE UNDER TRUST NO. 676993; KRUPP ASSET MANAGEMENT, A DIVISION OF KRUPP REALTY COMPANY LIMITED PARTNERSHIP, 5650 SHERIDAN PARTNERSHIP; BERKSHIRE REALTY COMPANY, INC., A CORPORATION; KRUPP 565 CORP., A CORPORATION; KRUPP COMPANY-II, AN ILLINOIS LIMITED PARTNERSHIP; DOUGLAS KRUPP AND GEORGE KRUPP, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. Honorable Albert Green, Judge Presiding.

Released for Publication August 13, 1996.

The Honorable Justice Gordon delivered the opinion of the court: McNULTY, P.j. and Hourihane, J., concur.

The opinion of the court was delivered by: Gordon

JUSTICE GORDON delivered the opinion of the court:

Plaintiffs, Michael Friedman, Todd Seltzer and Julie Pener, representing all other tenants similarly situated, filed a class action suit seeking statutory damages against defendants, the owners-operators of residential apartment buildings in Chicago in which plaintiffs resided. After class certification and various amendments and procedural events not part of this appeal, plaintiffs filed a two-count, third amended complaint. In the first count, plaintiffs alleged that the leases issued to them by defendants for their apartments improperly included excessive late rental payment penalties in violation of the Chicago Residential Landlords and Tenants Ordinance (Chicago Municipal Code, ch. 5-12, § 5-12-010 et seq. (1986)) (the pre-1992 Ordinance), which was subsequently amended in 1992 (Chicago Municipal Code, ch. 5-12, § 5-12-010 et seq. (1992)) (the amended Ordinance). In the second count, which is not before us in this appeal, plaintiffs made similar allegations with respect to provisions in different apartment leases. Defendants moved to dismiss count one of the third amended complaint pursuant to section 2-615 of the Code of Civil Procedure (the Code) (735 ILCS 5/2-615 (West 1994)) for its failure to state a cause of action under the pre-1992 Ordinance. The trial court granted that motion, from which plaintiffs appeal pursuant to Illinois Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)).

The pre-1992 Ordinance provides in pertinent part as follows:

"5-12-140 Rental agreement.

No rental agreement may provide that the landlord or tenant:

(h) Agrees that a tenant shall pay a charge, fee or penalty in excess of $10.00 per month for the late payment of rent." (Chicago Municipal Code, ch. 5-12, § 5-12-140 (1986)).

The amendment to § 5-12-140, effective January 1, 1992, provides as follows:

"5-12-140 Rental agreement.

No rental agreement may provide that the landlord or tenant:

(h) Agrees that a tenant shall pay a charge, fee or penalty in excess of $10.00 per month for the first $500.00 in monthly rent plus five percent per month for any amount in excess of $500.00 in monthly rent for the late payment of rent;

(i) Agrees that, if a tenant pay rent before a specified date or within a specified time period in the month, the tenant shall receive a discount or reduction in the rental amount in excess of $10.00 per month for the first $500.00 in monthly rent plus five percent per month for any amount in excess of $500.00 in ...


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