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Harper Square Housing Corp. v. Hayes

June 17, 1999

HARPER SQUARE HOUSING CORPORATION, PLAINTIFF-APPELLANT,
v.
ZAKRYSCHA HAYES, DEFENDANT-APPELLEE.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY No. 97 M 1716660 HONORABLE CARL J. CIPOLLA, JUDGE PRESIDING.

The opinion of the court was delivered by: Justice Hall

Defendant Zakryscha Hayes, a member/occupant of a housing cooperative, appeals from the judgment of the circuit court awarding possession of her dwelling unit to plaintiff Harper Square Housing Corporation, a housing cooperative. We affirm the circuit court's judgment.

Plaintiff owns a housing cooperative located at 4859 South Lake Park, Chicago, Illinois (the cooperative). Defendant was a member of the cooperative and resided in unit 808B. Defendant paid a monthly carrying charge to plaintiff in the amount of $581. A $25 late charge was assessed against members who paid their carrying charges after the tenth of the month.

On April 3, 1997, defendant tendered a cashiers' check in the amount of $1,162 to plaintiff to cover the carrying charges for March and April 1997. Defendant did not keep a copy of or receipt from the check. On May 6, 1997, Angela Leonard, plaintiff's bookkeeper, sent a letter to defendant informing her that plaintiff had misplaced the cashiers' check and that defendant should stop payment on the check and re-issue a replacement check.

Ms. Leonard testified that defendant called her and confirmed receipt of the May 6, 1997, letter. Defendant told Ms. Leonard that she had spoken with her bank and that a stop payment could not be issued on the check without the check number. Defendant did not know the check number. Ms. Leonard testified that she asked defendant for the name of the bank at which the check was purchased; however, defendant did not provide this information. On May 13, 1997, Ms. Leonard sent a second notice to defendant again requesting the name of the bank, the date of purchase, and the exact amount of the check. According to Ms. Leonard, defendant never responded to this request.

Defendant testified that upon receipt of the May 6, 1997, letter, she called her bank and was told that it would take 30 days to trace the check. Defendant claimed to have informed Ms. Leonard of this information. The bank finally located the check on June 14, 1997, and defendant placed a stop payment on the check on that date. Defendant testified that she was told by the bank that it would take another 90 days or until September 14, 1997, for a check to be reissued or for the funds to be deposited in defendant's account. Defendant testified that she informed plaintiff of the 90-day delay.

Ms. Leonard testified that plaintiff's records showed that on May 21, 1997, defendant owed $1,818 in monthly charges and late fees for March, April, and May 1997. On that date defendant was served with a five-day notice which provided that if the sum of $1,818 was not paid within five days after service of the notice, defendant's right of occupancy would be terminated and defendant would be required to immediately deliver her membership certificate and occupancy agreement to the plaintiff and to vacate her unit. Defendant did not tender any amount of money to plaintiff within the five days subsequent to the May 21, 1997, notice.

Defendant testified that her bank account was frozen from the end of April 1997 until May 25, 1997, by a court order obtained by plaintiff in another matter. No copy of the court order was presented at trial. Defendant testified that on May 30, 1997, once the freeze was lifted, she tendered $1,187 to plaintiff to cover the monthly charges for May and June 1997. Plaintiff returned this check on June 9, 1997, because it was not for the full amount due on the five-day notice.

On June 5, 1997, plaintiff filed this action pursuant to the Forcible Entry and Detainer Act (the Act)(735 ILCS 5/9-101 et seq. (West 1996)) seeking possession of unit 808B and past-due rent and damages in the amount of $2,399. A bench trial followed. During the bench trial, plaintiff voluntarily dismissed with prejudice its claim for past-due rent and money damages. On July 17, 1997, the trial court entered an order for possession in favor of plaintiff.

On August 13, 1997, defendant filed a timely motion to vacate the July 17, 1997, judgment which was denied on November 5, 1997. Defendant filed a timely notice of appeal on November 6, 1997, and a timely amended notice on November 20, 1997. On appeal defendant contends that: (1) the circuit court's judgment granting possession in favor of plaintiff was against the manifest weight of the evidence; and (2) the circuit court erred in denying defendant's motion to vacate the July 17, 1997, judgment.

The Act provides the sole means for settling a dispute over the possession of real property. Russell v. Howe, 293 Ill. App. 3d 293, 688 N.E.2d 375 (1997). Section 9-102(a) of the Act (735 ILCS 5/9-102(a)(West 1996)) sets forth eight circumstances under which an action for forcible entry and detainer may be maintained. Section 9-102(a) does not specifically refer to a housing cooperative situation as one of those circumstances; however, section 9-102(a)(4) makes the Act applicable to situations involving leaseholds providing that an action may be maintained:

"When any lessee of the lands or tenements, or anyperson holding under such lessee, holds possessionwithout right after the termination of the lease ortenancy by its own limitation, condition or terms, orby notice to quit or otherwise." 735 ILCS 5/9-102(a)(a)(4)(West 1996).

Illinois courts have considered whether a housing cooperative situation should be viewed as a situation involving a leasehold. In Sinnissippi Apartments, Inc. v. Hubbard, 114 Ill. App. 3d 151, 448 N.E.2d 607 (1983), the court reviewed at length the nature of a cooperative and noted the similarities between cooperatives and leaseholds. In a typical cooperative situation, proprietary leases which contain provisions common to other leases are issued by the cooperative to member/occupants. The court noted:

"[I]t would seem clear that the lease in the usualcooperative apartment organization creates the relationof landlord and tenant between the corporation and theshareholder-occupant. Of course, the purpose of theorganization is to approach individual home ownershipas nearly as possible in a situation where the onlypractical solution is common operation and managementof many features, and the number of the occupant'sshares are determined by the value of the apartment he occupies. But in legal theory the corporation isdistinct from its shareholders, no one of whom has aright to receive legal title to any specific propertyof the corporation under the better-drawn plans, and it is necessary that this distinction be observed in orderto carry out the purposes of the cooperative. Thecourts have recognized that the ...


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