January 1, 2002

Table of Contents


When considering a move into a new apartment, what is the most important thing that crosses a tenant's mind? How much is the rent? What is the neighborhood like? How close are the schools? Any one of these questions, or perhaps all of them, are sure to be important. But the most important question is probably the one that most tenants do not even think about. Is the apartment safe? And by safe we mean safe in ways that cannot readily be seen. Obviously, if there is loose wiring or if the ceiling is falling in or if there is some other obvious danger, most tenants probably would not rent the apartment in the first place. Or if they do, they will make sure that the landlord promises to fix the problems.

But what about the dangers that a tenant cannot see? The hidden dangers? The latent defects? Those are the ones that are really the most dangerous, dangerous because they cannot be seen, because tenants cannot prepare for or avoid that which they do not know. So they have no choice but to rely on the landlord. If the landlord is aware of a dangerous condition, one that is not readily apparent, one expects the landlord to tell the tenant about it. And indeed in such a case a landlord has a duty to disclose hidden defects of which it is aware.

But what about those hidden defects of which the landlord is unaware? Who is responsible for them? The tenant? The landlord? Nobody?

The question is an interesting one, with an equally interesting answer.  Although the common law does not impose liability on a landlord for unknown defects, at least one major Illinois city perhaps does.  Through a little-used provision in its Landlord and Tenant Ordinance, the city of Chicago has potentially taken a giant step toward addressing this gap.  But if it has, it has to date been a sleeping giant.

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Who Is Legally Responsible?

Under current Illinois law, when a landlord retains control of a portion of the leased premises (i.e., common areas such as stairways, porches, and entranceways), the landlord has "the duty to use ordinary care in maintaining that part of the premises in a reasonably safe condition."  See Gengler v. Herrington, 219 Ill. App. 3d 6, 11, 579 N.E.2d 412, 415 (2nd Dist. 1991).  However, a landlord is not responsible for injuries "caused by a defective condition on the portion leased to a tenant and under the tenant's control."  See id.  Further, a landlord is not liable for injuries that are not reasonably foreseeable; it is not an "absolute insurer" for all injuries occurring on leased premises.  See id., 219 Ill. App. 3d at 11, 579 N.E.2d at 416.  For the landlord to be liable, the tenant must establish that it "had actual or constructive knowledge of the existence of the defective or dangerous condition."  See id.

Thus, a landlord generally does not have a duty to inspect leased premises for defects; instead, it is the tenant's duty to inspect the premises to determine their "safety and suitability."  See Housh v. Swanson, 203 Ill. App. 3d 377, 383, 561 N.E.2d 321, 325 (2nd Dist. 1990).   There are, however, exceptions to this general rule. For instance, where a latent defect (one which is hidden from knowledge and from sight and cannot be discovered by the exercise of ordinary and reasonable care) exists at the time of leasing and should have been known to the landlord, a landlord will be liable for injuries arising from that defect.  See Dapkunas v. Cagle, 42 Ill. App. 3d 644, 647, 356 N.E.2d 575, 577 (5th Dist. 1976). 

However, if the defect is of such a nature that the tenant can or does discover it on his or her own, then the landlord is not liable for any injuries caused by the defect.  See Housh, 203 Ill. App. 3d at 383, 561 N.E.2d at 325.  Accordingly, whenever a landlord is aware of facts that would lead a reasonable person to conclude that a hidden danger might exist, then the landlord has a duty to see if in fact that condition exists or not.  In other words, under those circumstances a landlord may indeed have a duty to inspect. If it does not inspect, then it is charged with the knowledge that a reasonable inspection would have given.  See id.

There is an obvious problem with imposing liability only for known defects, of course: it creates a situation in which ignorance is not only bliss but also (perhaps) a rock-solid defense.  In other words, in order to avoid potential liability for dangerous conditions that a landlord for whatever reason does not want to fix, a landlord has a very strong incentive to put its head in the sand and keep itself ignorant from ever finding out about those dangerous conditions. For a landlord, what it does not know cannot hurt it. The problem is, what the landlord does not know can very easily hurt its tenant.

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Historical Roots for General Rule

Still, the general rule remains that a landlord ordinarily does not have an obligation to inspect. Why is that? From where did that general rule come? The fact is, the lack of a duty to inspect has its historical roots in a time long past and in a place far different from the typical United States urban environment.

In fifteenth-century rural England, the typical leasehold was agricultural in nature.  See Irma W. Merrill, Landlord Liability for Crimes Committed by Third Parties Against Tenants, 38 Vand. L. Rev. 431, 433 (March, 1985).  The lease of land was a conveyance, meaning that the tenant paid rent to the landlord in exchange for having complete dominion over the land.  See id.  Because the tenant retained exclusive control over the land, he or she made all necessary repairs to the property.  See id.  The landlord essentially did not care about the condition of the property as long as it collected rent.  See id.  However, with the development of commerce and the growth of urban communities, the nature of the leasehold changed.  See id. at 433-34.  As the differences between the agrarian tenant and the town resident became apparent, medieval England lawmakers recognized that keeping town buildings in good repair was necessary to the safety of the community.  See id.  Therefore, these lawmakers developed borough customs, or codified rules, that strictly regulated the maintenance of leased land and structures.  See id. 

United States courts generally followed these English rules in formulating the landlord's duties to its agrarian tenants.  See id.  Similarly, United States courts expanded landlord liability to suit the social and cultural changes in this country.  See id.  Unfortunately, the expansion of landlord liability has not reached far enough to suit today's urban communities.  That is because, even today, a landlord does not have a general duty to inspect for latent defects.

Although it may have made sense not to impose a duty to inspect on a landlord in medieval rural Britain, it makes absolutely no sense in a modern urban setting. Who better has the means to discover hidden dangers than the owner of the property? Moreover, it is to the benefit of the owner/landlord of the property to make sure that the property is well-maintained, both externally and internally. And there are good social policy reasons to put this duty on the landlord. In almost every case the landlord is in a better economic position to inspect for hidden dangers than the tenant.

This is especially true with lower income housing, housing which more likely has hidden dangers. Indeed, for very similar reasons, that is why most cities have ordinances that require a landlord to provide a fit and habitable apartment to a tenant. In Chicago, for example, a landlord is required to "maintain the dwelling unit and common areas in a fit and habitable condition."  See Chicago Municipal Code Section 5-12-110.  How can a landlord fulfill this obligation if it does not inspect for hidden dangers? The fact is, it cannot. If an apartment is dangerous to the health and welfare of its tenants, that apartment is not fit and habitable, whether the danger is obvious or hidden. Thus, to insure that its residential dwellings are fit and habitable, a landlord must periodically inspect the apartment as part of its normal and reasonable maintenance procedures.

So does this mean that a landlord has a duty to inspect if the apartment is located in cities with ordinances requiring apartments to be fit and habitable? Most landlords say no. They say that despite the obligation of such ordinances, a landlord still has no duty to inspect, at least no duty that runs to the tenant. Although acknowledging, reluctantly, that perhaps it has such a duty in order to avoid violating these ordinances, landlords continue to maintain that, even if they violate the ordinance and a tenant is injured as a result, that tenant has no recourse.

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Expand Common Law?

One solution to this problem is to expand the common law regarding premises liability to eliminate notice requirements.  All this means is that a common law claim against a landlord for injuries sustained on leased premises would be based on ordinary principles of negligence.  Such a cause of action would be based on ordinary care, just as it is with respect to the common areas.  See Anglin v. Oros, 257 Ill. App. 3d 213, 217, 628 N.E.2d 873, 876 (1st Dist. 1993).  As discussed above, however, under current law, to show that the landlord breached his or her duty, the tenant must establish that the landlord had actual or constructive knowledge of the defect.  See id.  This means, of course, that a landlord may be able to escape liability by not inspecting for latent defects.

However, if an ordinary negligence standard is used and notice requirements are eliminated, a landlord would have to inspect for latent defects or be in breach of its duty to the tenant.  Thus, the ordinary care standard will impose on the landlord a duty to inspect.  A landlord will not be able to escape this duty by burying its head in the sand.  Such a standard may require a little more effort on the part of the landlord, but it ensures the safety and habitability of leased premises for tenants.

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Express Right of Action under Chicago Landlord/Tenant Ordinance

Unless injured tenants can bring actions for damages against those landlords who do not have actual or constructive notice of a pre-existing latent defect, all landlords will have a tremendous incentive to "bury their heads in the sand" regarding latent defects. Indeed, landlords may actually take pains to avoid acquiring such notice. The resulting harm to tenants is obvious. If landlords have no obligation to inspect their property for latent defects, it is likely that no defects will be repaired until after a tenant is first injured. Only then will a landlord in many cases receive "notice" of the defect and only then will it be required to take steps to abate the problem. But by then it will be too late, at least for the tenant who has been harmed.

This is what happened in Abbasi v. Paraskevoulakos.  See 187 Ill. 2d 386, 718 N.E.2d 181 (Ill. 1999).  In that case, the landlords owned and managed an apartment building that contained deteriorated lead-based paint, dust, and plaster.  See 187 Ill. 2d at 389, 718 N.E.2d at 183.  The landlords failed to do anything to safely abate the lead hazard.  See id.  As a result, the minor plaintiff, Sana Jamil Abbasi, was lead-poisoned and suffered permanent lead-related injuries.  See id.  Had a duty to inspect been imposed on the landlords, they surely would have discovered the lead hazard and no one would have been injured. 

Without a duty to inspect, to be held responsible, a landlord had to have knowledge, actual or constructive, of the lead hazard.  Without actual or constructive knowledge of the lead hazard, the plaintiff had no claim.  However, in addition to the negligence claim, the Abbasi plaintiff attempted to bring a claim under the Chicago
Residential Landlord and Tenant Ordinance ("Landlord/Tenant Ordinance").  See Abbasi, 187 Ill. 2d 386, 718 N.E.2d 181.   By its plain language, Section 5-12-110(e) of the Landlord/Tenant Ordinance expressly gives injured tenants a private right of action for damages against landlords who violate the ordinance, regardless whether a particular violation is willful or innocent:

Damages and Injunctive Relief. If there is material noncompliance by the landlord with the rental agreement or with Section 5-12-070, the tenant may obtain injunctive relief and/or recover damages by claim or defense. This subsection does not preclude the tenant from obtaining other relief to which he may be entitled under this chapter.  (Emphasis supplied.)

Thus, in addition to the "other relief [available] under this chapter," an injured tenant also has the independent right to sue the landlord for damages under Section 5-12-110(e) for materially violating Section 5-12-070. Any other interpretation would render the second sentence of Section 5-12-110(e) meaningless.  Most importantly, the ordinance does not condition liability on the landlord's awareness of a given hazard.

Section 5-12-070 requires landlords to maintain leased premises "in compliance with all applicable provisions of the Municipal Code and [to] promptly make any and all repairs necessary to fulfill this obligation." Elsewhere, the Landlord/Tenant Ordinance defines "material noncompliance" with Section 5-12-070 to include, among other things, a failure to maintain the apartment in habitable condition:

Failure to maintain floors, interior walls or ceilings in sound condition and good repair; failure to maintain windows, exterior doors or basement hatchways in sound condition and repair; failure to maintain stairways or porches in safe condition and sound repair; failure to maintain stairways or porches in safe condition and sound repair; and failure to maintain the dwelling unit and common areas in a fit and habitable condition.  See Landlord/Tenant Ordinance, §5-12-110; emphasis supplied.

Thus, if there is "material non-compliance…with Section 5-12-070," the tenant can "recover damages." Personal injury "damages" are "damages" and thus should be recoverable under this provision. There are no conditions, prerequisites, or qualifications. "Damages" are nowhere defined as a return of rent or some other limited or contractual form of relief. The ordinance simply says "damages," and "damages" under any sense of the word include personal injuries.

If the City Council had wanted to exclude such damages, it could have explicitly said so in any number of ways. That it chose not to, that it instead deliberately used broad language that encompasses personal injuries, must mean that the City Council meant what it said, that an injured tenant has the right under the Landlord/Tenant Ordinance to sue for damages.

In addition to damages, Subsection (e) authorizes the tenant to pursue any "other relief" to which he or she may be entitled under other subsections. Such other remedies may be pursued independently and concurrently. But nothing in Subsection (e) requires a tenant to fulfill conditions found in other provisions (such as notice) or to exhaust other remedies before pursuing damages. And like Subsection (e), none of the remaining subsections purports to be exclusive.

It is axiomatic that in interpreting statutes and ordinances courts are obligated to give the language used by the legislature its plain and ordinary meaning.  See Williams v. Illinois State Scholarship Comm'n, 139 Ill. 2d 24, 52, 563 N.E.2d 465, 477 (1990).  Courts are also bound to attribute meaning to all sections of a statute or ordinance.  See County of Winnebago v. Industrial Comm'n, 34 Ill. 2d 332, 334, 215 N.E.2d 258, 260 (1966) (presence of "mere surplusage…is not to be presumed in statutory construction").  Here, the plain, unambiguous language of Subsection 5-12-110(e) expressly and unequivocally gives injured tenants a private right of action for damages against landlords who violate the Landlord/Tenant Ordinance. Any other interpretation would render Subsection 5-12-110(e) a nullity.

A bedrock purpose of the Landlord and Tenant Ordinance is "to protect and promote the public health, safety, and welfare" of tenants by requiring landlords "to maintain and improve the quality of housing."  See Landlord/Tenant Ordinance, § 5-12-010.  For several reasons, that purpose can only be fully achieved if there is a private civil right of action.  Without a private right of action, the formidable burden of enforcing the Ordinance falls exclusively upon already overburdened city agencies. As a practical matter, therefore, the threat of civil liability is the only efficient means of enforcement.

Nevertheless, in Abbasi, the Illinois Supreme Court declined to recognize a private right of action under this Ordinance, at least for injuries resulting from lead poisoning.  The Court declined to explain its reasoning why the express language of the Ordinance did not give a tenant an express right to sue for injuries.  The Court's decision, however, is limited to lead poisoning injuries.  Therefore, there is still an open issue as to whether a tenant suffering from other types of injuries has a right to sue for damages under the Landlord/Tenant Ordinance.

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Chicago's Home Rule Power

Even if a tenant may be able to bring an action for injuries (not related to lead poisoning) under the Landlord/Tenant Ordinance, the landlords say that the ordinance is an invalid exercise of Chicago's home rule power under Article VII, §6(a) of the Illinois Constitution.  They say that it is beyond a city's home rule power to create civil remedies for the violation of a landlord/tenant ordinance.  However, in City of Evanston v. Create, Inc., the Illinois Supreme Court effectively disposed of the issue.  See 85 Ill. 2d 101, 421 N.E.2d 196 (1981).  There, the Supreme Court upheld Evanston's Residential Landlord/Tenant Ordinance as a valid exercise of home rule power under Section 6(a):

Under this grant of power the home rule unit possesses the same power as the state….Therefore, the home rule unit of Evanston may act under its constitutionally granted police powers to pass reasonable regulations concerning the activities of landlords and tenants in order to protect the public health, safety, morals, and welfare.  See 421 N.E.2d at 202 (emphasis supplied). See also, City of Elgin, 660 N.E.2d at 880 ("home rule units have all the powers of the sovereign, limited only by the constitution itself and the General Assembly," citing City of Urbana v. Houser, 67 Ill. 2d 268, 273, 367 N.E.2d 692 (1977)).

Most importantly, in upholding the ordinance in City of Evanston the Court expressly acknowledged that a local governing body (like Evanston or Chicago) has a strong local interest (and thus the right and power) to define not only the duties of a landlord and its tenant but also the remedies imposed for violating those duties:

The City of Evanston is a densely populated and highly urbanized municipality with a large number of rental units. The City, therefore, has a strong interest in protecting both the landlord and tenant and in providing each with a detailed description of their respective rights, duties and remedies.  Id. at 200 (emphasis supplied).

Like Evanston, Chicago has a substantial interest in regulating relations between landlord and tenant. Indeed, as the largest municipality in the most highly urbanized area of the state, Chicago urgently needs to make creative use of flexible home rule powers in regulating landlord-tenant relations.  See id. at 201.  Accordingly, the Landlord/Tenant Ordinance is a legitimate exercise of Chicago's home-rule power. Similarly, as in City of Evanston, it is also a legitimate use of home rule power for the City of Chicago to provide civil remedies for violations of its Landlord/Tenant Ordinance.

Significantly, the City of Evanston Court recognized that Evanston's ordinance did not alter any principle of contract law but that, if it did, it would be permissible to do so:

The State has always had the right under police powers to impose conditions on private contractors as long as it was necessary for the public good. Consequently, it is beyond question that the State, acting in a reasonable manner in the exercise of its police powers, had the right to adopt statutes which impinged on the activities of private parties to a contract.  Id. at 202, citations omitted.

As already noted, of course, home rule units have all the powers of the state except as expressly limited. With respect to the ordinances, therefore, certainly the City of Chicago has the home rule authority to require landlords to find and eliminate latent hazards that directly affect the health and welfare of its residents. Indeed, the Constitution expressly gives a home rule unit the right to impose regulations that protect the public health.  Ill. Const. 1970, art. VII, §6(a).  That is what the Chicago ordinance does; that is what the private right of action under the ordinance will promote; and that is why the City had the power to enact these provisions and to provide injured parties with the right to sue for damages caused by their violation.

Recognizing that an injured tenant has a private right to sue for damages would not create a novel civil tort nor would it invent a new common law tort.  It would simply acknowledge that an injured tenant has a civil remedy for a landlord's non-compliance with the ordinances at issue. As explained by the Court in City of Evanston, this is a valid exercise of home rule power, an exercise which in no way interferes with the administration of justice:

The fact that the provisions of the Ordinance here in question define notice procedures, duties of the parties, and remedies available does not interfere with our court system. Courts are regularly called upon to enforce or interpret municipal ordinances.  421 N.E.2d at 202 (emphasis supplied).

In City of Evanston, the Court confirmed that a home rule unit can fashion appropriate remedies under a landlord/tenant ordinance. A criminal fine is one such remedy. A civil action for damages is simply another remedy. Both types of remedies help ensure compliance with the ordinance and thus protect the public heath. Under City of Evanston, both should be within a home rule unit's power. Indeed, if a city can impose criminal or quasi-criminal penalties on someone who violates an ordinance, then it follows that the City can also impose a lesser remedy, such as a civil suit for damages.

In addition to the Court's decision in City of Evanston, which acknowledged that a home rule unit has the power to define tenant remedies, several decisions recognize that an ordinance, expressly or by implication, can authorize a private right of action. E.g., Wolinsky v. Kadison, 114 Ill. App. 3d 527, 534-535, 449 N.E.2d 151, 157-58 (1st Dist. 1983) (recognizing condominium owner's express right of action for damages against condominium association under Chicago Condominium Ordinance). See Selvy v. Biegel, 283 Ill. App. 3d 532, 670 N.E.2d 784 (1st Dist. 1996) (court appeared to assume without discussion that a minor tenant had private right of action for lead injuries under Chicago's Landlord/Tenant Ordinance). See also Reuben H. Donnelley Corp. v. Brauer, 275 Ill. App. 3d 300, 655 N.E.2d 1162 (1st Dist. 1995) (suggesting that, if the plaintiff had been a member of the protected class, he might have had a private cause of action under an administrative regulation).

Further, the home rule power was meant to be extremely broad, as it significantly changed the rule prevailing before the 1970 Constitution. Before that time, under what was known as Dillon's Rule, units of local government were deemed to have only those powers which were specifically granted to them by Constitution or by statute. The 1970 Constitution reversed that underlying presumption. Now, home rule units are deemed to have all powers pertaining to their government and affairs co-extensive with those of the state except as specifically limited.  See Constitutional Commentary, Art. 7, Section 6.

The Illinois Supreme Court has often stated that home rule units have all of the powers of the sovereign, limited only by the Constitution and the General Assembly.  See City of Elgin, 660 N.E.2d at 881.  Indeed, the "powers and functions of home rule units [are to be] construed liberally", Ill. Const. 1970, Art. VII, Section 6(m), and that "home rule units are given broad powers to legislate."  See City of Chicago v. Roman, 292 Ill. App. 3d 546, 551, 685 N.E.2d 967 (1st Dist. 1997).  Thus, the City of Chicago has both the power and the right to require landlords to find and eliminate latent defects — and to allow tenants, injured by a landlord's failure to do so, to sue for damages.

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The Chicago Landlord/Tenant Ordinance is a sleeping giant.  It potentially has the power to dramatically change the landscape in premises liability.  As written, it expressly allows a tenant injured by a latent defect to sue his or her landlord for damages whether or not that landlord had any prior knowledge of the defect.  To date, however, this giant still sleeps.  It is only a matter of time before it awakens.

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