(This is the first in a two-part series regarding retaliatory eviction issues relating to tenants and landlords in the greater Champaign-Urbana area. The second part will appear next Tuesday at the same time.)
In downstate Illinois, a law aimed at protecting tenants from landlords who might retaliate against them for calling in a building inspector is almost never used.
Does this mean that landlord-tenant relations are just peachy in the land south of Chicago?
Not really, say tenant advocates and lawyers who encounter the issue. The reason the law is so seldom used is because its application is so narrow that it doesn’t always have bearing on real-life situations. Additionally, proving that retaliation has actually occurred can be a hefty burden for tenants.
Because of the way the law is structured, finding landlord retaliation is extremely difficult to find and prove, according to lawyers who handle the issue.
Almost every state offers some sort of protection to tenants from landlord in this capacity, but because Illinois’ law only works under such a specific set of circumstances it offers renters little protection downstate, according to lawyers who handle tenant law. In Chicago, tenants are afforded broader protection by a citywide ordinance.
The Retaliatory Eviction Act is only meant to apply to a very specific scenario: something breaks in a tenant’s rental. The tenant complains to a building inspector. The landlord retaliates by evicting the tenant. The tenant goes to court to contest the eviction, claiming retaliation as a defense.
While the text of the law seem to strike a conciliatory accord, tenant advocates say that the issues with the law is that the sequence almost never occurs in precisely this order. There is more than one way a landlord can retaliate, and the bar for proving that retaliation has actually occurred is a high one.
“It’s not a very broad law. It doesn’t cover much. It just isn’t terribly helpful,” says Esther Patt, coordinator of the Tenant Union of the University of Illinois in a telephone interview. “There are other ways landlords can retaliate.”
John Roska, a staff attorney for Land of Lincoln Legal Foundation, said in a telephone interview that the reason that the law is almost never invoked is because there are often a number of other issues at play.
Roska also said that sometimes a tenant might be behind on rent and reluctant to call the building inspector about a problem with their rental.
“If a tenant is a dollar short then the landlord has every right to give a notice of eviction,” says Roska.
Mick Woolf, a housing counselor at the Champaign-Urbana Tenant Union, says in an interview that tenants who might be behind on their rent or have been less than perfect tenants receive less protection under the law.
Woolf explains that a landlord could retaliate against a tenant and then produce a perfectly legitimate reason, such as non-payment of rent or past noise complaints, for the eviction.
However, Roska and Woolf both say they are confident that retaliation does occur, but often outside of the specific circumstances outlined in the act.
Giving a tenant the boot isn’t the only way a landlord can retaliate. They can also put an annoying tenant at the bottom of the list for repairs, try to find a way to withhold their deposit when they move out, or increase their rent, says Woolf.
Urbana has an ordinance that offers a bit more protection than state law. Under the ordinance, a landlord can’t evict a tenant for complaining to an advocacy group.
Lisa Vandermark, a housing counselor at the Champaign-Urbana Tenant Union, said that the ordinance is still quite narrow and doesn’t know of anyone actually invoking it.
“Most landlords are not stupid enough to do something overt enough to establish a retaliatory eviction,” says Tom Betz, a staff attorney with the University of Illinois Student Legal Service, in an interview.
Betz says that “since the act has such a specific application landlords often have a very clear understanding of what will open themselves up to retaliation claims, and take care not to do those things.”
There is a flipside, however. Julie Eckard, the executive director of the Illinois Rental Properties Owners Association, told me in a telephone interview that her organization opposes the law and any efforts to strengthen it, since landlords typically have legitimate reasons for evicting tenants.
Dan Hamelberg, a local landlord and representative of the Central Illinois Apartment Association, said that his organization does not have a stance on the law.
Several landlords interviewed for this article were unfamiliar with the law. And that is no surprise says Patt. “If a tenant contests their eviction on grounds that it was retaliatory they would have to do so in court, which would almost certainly require a tenant to hire a lawyer.”
And if a tenant is unsuccessful in trying to invoke the law?
“You really are screwed,” says Betz.
Plus if a tenant loses their case in court they’re stuck with attorney fees. They would still have to move out shouldering any moving costs, and the eviction will remain as a blemish on their rental record.
The burden to prove retaliation puts poor people at a particular disadvantage. They may forgo fighting a retaliatory eviction due to lack of money for a lawyer, and may be reluctant to risk losing their case and having to eat attorney’s fees in addition to moving costs.
“Tenants who are under a month-to-month rental agreement have very little protection under the act,” notes Patt. “Unlike a lease, which would require a landlord to provide a reason for evicting the tenant, either party can end such an agreement. No reason for doing so needs to be given.”
Under a month-to-month lease, a tenant would have to essentially prove the unspoken intentions of the landlord in a retaliation case. If a tenant under such an agreement did take an eviction to court, the landlord could cite any other reason other than retaliation and be in the clear.
“The whole purpose of a month to month is to be able to end the relationship with the tenant,” says Patt. “If they retaliate, they can get away with it.”
Betz explained that the law can sometimes be used as leverage on a landlord to settle if it is obvious that retaliation has occurred.
However, he added that he has no doubt that retaliation does take place in Champaign-Urbana. It’s just extremely difficult to find and prove.
Kathleen K. Clark, the executive director for the Lawyers’ Committee for Better Housing, says that her organization rarely uses the state law when defending a Chicago tenant, instead opting for the city’s ordinance, which she described as significantly stronger.
The city ordinance defines actions protected against retaliation more broadly to include: complaining to elected representatives or other public officials, complaining to the media or a community organization, testifying against a landlord in court, complaining to the landlord, joining a tenants’ union, or using “any right or remedy provided by law.”
Conversely, the ordinance broadly defines what constitutes retaliation by the landlord to include: increasing rent, terminating the rental agreement, and bringing or threatening to bring a lawsuit against the tenant.
If a tenant pursues any of these protected actions, and their landlord does anything defined as retaliation, it is presumed in court that the landlord has retaliated against the tenant. This reduces the burden the tenant has to shoulder to prove retaliation, said Clark.
“The Chicago tenant ordinance makes it much easier for tenants to feel safe about protecting themselves and enforcing their remedies,” said Lawrence Wood, a supervisory attorney for the Legal Assistance Foundation of Metropolitan Chicago, in a telephone interview. Wood echoed Clark by saying that trying to prove retaliation outside of Chicago would be “very difficult” because the tenant has to meet such a high bar.
“It’s important because housing is vital to a family’s well being. Families would be homeless at the whim of their landlord regardless of wrong doing,” said Clark of the importance of the issue.
Patt said that defining the act more broadly could provide better protection.
However, Betz suggested that reforming the Retaliatory Eviction Act might not be the most effective remedy to better protect tenant rights.
Betz said that if the law allowed tenants to freeze rent if their unit was not up to code it would goad landlords into making repairs more rapidly.
“If you really believed in having in property that meets code you would do that, and property would meet code,” sneered Betz. “You wouldn’t have the risk of retaliation.”