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Namur v. Habitat Co.

February 11, 1998

GEORGE NAMUR AND MATTHEW TOLF, PLAINTIFFS-APPELLEES,
v.
THE HABITAT COMPANY, DEFENDANT-APPELLANT.



The opinion of the court was delivered by: Presiding Justice Cerda

Defendant, The Habitat Company, appeals from the denial of its motion to dismiss the lawsuit of plaintiffs, George Namur and Matthew Tolf, who are the former tenants of an apartment leased from defendant. Defendant also appeals from a penalty and attorney fees imposed pursuant to the Chicago Residential Landlord and Tenant Ordinance (Chicago Municipal Code §5--12--010 et seq. (amended November 6, 1991)) (hereinafter the ordinance) based on defendant's failure to attach a summary of the ordinance to plaintiffs' lease. Plaintiffs argue in their cross-appeal that they were entitled to the full amount of their attorney fees and that the trial court erred in finding that defendant did not commingle their security deposit with defendant's assets.

The issue we address is whether plaintiffs' action alleging violations of the Chicago Residential Landlord and Tenant Ordinance sections sought a "statutory penalty" within the meaning of the two-year statute of limitations found in section 13--202 of the Code of Civil Procedure (735 ILCS 5/13--202 (West 1996)).

FACTS

On December 8, 1991, plaintiffs gave a security deposit and signed a lease for an apartment for a term running from February 1, 1992, through March 31, 1993. The security deposit was deposited that month. After plaintiffs vacated the apartment, they received their security deposit back with interest.

On September 16, 1994, plaintiffs filed a two-count verified complaint against defendant. Count I sought attorney fees and damages under the ordinance in the amount of twice the security deposit for defendant's alleged failure to comply with section 5--12--080(a) of the ordinance, which prohibited security deposits from being commingled with assets of landlords (Chicago Municipal Code §5--12--080(a) (amended November 6, 1991)). Count II sought damages and attorney fees for defendant's alleged violation of section 5--12--170 of the ordinance, which required landlords to attach a summary of the ordinance to each written rental agreement (Chicago Municipal Code §5--12--170 (amended November 6, 1991)).

Defendant filed a motion to dismiss the complaint on the basis that the action was not filed within the two-year statute of limitations contained in section 13--202 of the Code of Civil Procedure for "ctions for damages *** for a statutory penalty" (735 ILCS 5/13--202 (West 1996)). Defendant argued that the causes of action accrued in 1991, when the lease was signed and when the security deposit was deposited.

The trial court denied the motion to dismiss. The trial court found that the ordinance was not a "statute" within the meaning of section 13--202. The trial court instead applied the five-year statute of limitations for civil actions that were "not otherwise provided for." 735 ILCS 5/13--205 (West 1996).

On November 22, 1996, the trial court found for plaintiffs on count I in the amount of $100 and found for defendant on count II. On February 19, 1997, the trial court entered Judgement in favor of plaintiffs for $1,470 in attorney fees.

Defendant appealed, and plaintiffs cross-appealed.

DISCUSSION

Defendant first argues in its appeal that the trial court erred in denying its motion to dismiss because the complaint was not filed within the two-year statutes of limitations for "ctions for damages *** for a statutory penalty." 735 ILCS 5/13--202 (West 1996). In support of this issue, defendant argues that section 5--12--080(f) of the ordinance, imposing damages in the amount of two times the monthly rent for commingling a tenant's security deposit, and section 5--12--170 of the ordinance, imposing fixed damages in the amount of $100 for failing to attach a summary of the ordinance, are penal provisions. Plaintiffs argue that the ordinance is a remedial ordinance.

The ordinance states its purpose:

"It is the purpose of this chapter and the policy of the city, in order to protect and promote the public health, safety and welfare of its citizens, to establish the rights and obligations of the landlord and the tenant in the rental of dwelling units, and to encourage the landlord and the tenant to maintain and improve the quality of housing." Chicago Municipal Code §5--12--010 (amended November 6, 1991).

The ordinance "shall be liberally construed and applied to promote its purposes and policies." Chicago Municipal Code ...


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