Legal Memorandum

 

April 15, 2021

 

To:         Jane Smith

From:    Elizabeth Neill

Re:         Must Sam Kirk return Anna James’ security deposit under 765 ILCS 710/1 (2020)?

 

Issue

The issue is whether Sam Kirk must return Anna James’ security under 765 ILCS 710/1 (2020).

Anna James fulfilled some of the conditions necessary, as a tenant, to receive her security deposit back from her landlord, Sam Kirk. She left the unit in “spotless,” condition, and did no damage to any part of the unit. More than 45 days have passed since she left the unit, which would make Sam Kirk liable for return of the security deposit and interest were there not other issues to be decided in this lawsuit.

However, Sam Kirk alleges that he is not responsible for returning the security deposit because, he alleges, Anna James broke the lease. She moved out of the apartment six months before the lease was to have ended. He is now suing her for the rent due during the remaining six months of the lease, or $6,000.

Anna James counter-alleges that under the terms of the lease, she was entitled to end the lease if she brought a sub-lessee to take over the lease. That right is stated in the lease. Anna James brought three tenants to her landlord, Sam Kirk. Kirk alleges that all three of the proposed tenants James brought him were unqualified. James disputes this. While the lease required Kirk to provide notice in writing that he accepted the sublessor, and he provided no such notice, James alleges that because the lessees she proposed were qualified, his failure to do so was capricious and motivated by personal prejudice, not a true business motive. Kirk provided no written or oral statement of the qualifications proposed new tenants must meet, and also provided no oral or written explanation why the individuals James proposed take over the new lease failed to be qualified. Kirk also provided no letter, no statement, whether oral or in writing, explaining why he was retaining the security deposit, at any time.; nor is it explained in his Complaint. Another issue that may be more important is that Plaintiff has offered no evidence that he made any effort to rent the unit after Defendant James left.

Rule

It is to be presumed, that because 765 ILCS 710/1 specifies that the landlord takes a security deposit to “secure the payment of rent or to compensate for damage to the leased property” that he believes he is entitled to keep it because, he argues, Anna James broke the lease.

Analysis

Ultimately, whether or not Sam Kirk must return Anna James’ security deposit under 765 ILCS 710/1 turns on whether or not the circuit court will agree with Plaintiff that James broke the lease. If the court agrees that James did not break the lease, there are no grounds for Plaintiff to keep the security deposit, and Plaintiff may also be liable to pay interest on the deposit in addition. If the court believes that the Plaintiff did nothing to “mitigate damates” by finding another tenant, the court may also find for the Defendant and will likely require that the security deposit be returned. If the court finds that James did break the lease, it’s unlikely that the court will rule that Plaintiff must return the security deposit.

I was unable to find a case that was meaningfully similar to the issues raised in James’ Affirmative Defense. That is I could not find a case in which any court had ruled on the landlord’s obligation to define what is a “qualified tenant,” or on a landlord’s obligation to define what is a “qualified tenant,” and express that to a tenant who wishes to find a tenant to take over a lease. The statute is silent on the subject. It is undisputed that the James had a right to find a subtenant to take over the lease, as this was expressly stated in the lease.

In Glasoe v. Trinkle (1985 IL 60154), the circuit court split the different between the disputing parties claims and counterclaims, providing offsets to the tenants but denying the tenants’ claims that the landlord had constructively evicted them by failing to provide a home that met the most basic standard of habitability, on the grounds that the location where the home was located, St. Joseph, Illinois, had no housing ordinance and therefore no standard of habitability that could be applied. The Illinois Supreme Court found that, regardless of any local ordinance, the habitability of a home is implied, and violation of that warranty is grounds for a valid claim on the part of the tenant. The finding of the lower court and of the Supreme Court suggests that when issues are ill-defined, the court may split the difference and a higher court may rule that however ill-defined, an issue with a valid basis in the facts of the case must be addressed.

Conclusion

I conclude from the result of Glassoe v. Trinkle (op cit.) that it is impossible to predict how the court may rule in this case, and that it is possible that the court may feel that both parties are at fault and will use its discretion split the difference by awarding partial damages to both parties. In that scenario, it’s less likely that James will receive the security deposit.