What Constitutes a Reasonable Effort to Replace a Tenant Who Breaks a Lease
My question involves landlord-tenant law in the State of: Chicago, Illinois
I informed the leasing office of my apartment building that I would be moving out of my apartment more than 60 days ago. I was unable to find a tenant to sublet it and now no longer live in the apartment. When I told the leasing office that I would be moving out they told me that they would attempt to find a tenant to sublet the apartment. However during the 60+ days from which I notified them they did not show my apartment to one potential tenant nor did they have the apartment listed on Zillow or Craigslist. I was told that I could break the lease however I would have to pay two months rent just to break it so I decided to attempt to find someone to sublet the apartment.
Since I did not tell the leasing office that I wanted to break the lease and rather I just gave them written notice that I would be moving out and needed to find a new tenant, are they still required by law to make a "reasonable effort" to re-rent the apartment to a new tenant?
Re: Landlord Required to Make "Reasonable Effort" to Re-Rent with Only Notice of Movi
While the landlord does have to make a resonance effort to rerent the property, his duty to do so not not start until you actually vacate the premises.
Re: Landlord Required to Make "Reasonable Effort" to Re-Rent with Only Notice of Movi
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tmc1284
Since I did not tell the leasing office that I wanted to break the lease and rather I just gave them written notice that I would be moving out
That's a distinction without a difference.
You moved out prior to the expiration of the term of the lease. That's breaking the lease (breaching the contract) no matter how you spin it.
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tmc1284
are they still required by law to make a "reasonable effort" to re-rent the apartment to a new tenant?
Yes.
However, as previously stated, not until you vacated the premises.
The IL Code of Civil Procedure:
(735 ILCS 5/9-213.1) (from Ch. 110, par. 9-213.1)
Sec. 9-213.1. Duty of landlord to mitigate damages. After January 1, 1984, a landlord or his or her agent shall take reasonable measures to mitigate the damages recoverable against a defaulting lessee.
You were not in "default" until you actually departed and returned possession of the rental to the landlord so the mitigation period began on that date.
So, the next thing we have to determine is the date of your move-out and the date the apartment was re-rented.
Can you tell us that?
Re: Landlord Required to Make "Reasonable Effort" to Re-Rent with Only Notice of Movi
I recently vacated the premises and notified the leasing office today that I had done so. The apartment has not been re-rented. They want 2x the monthly rent paid now and for me to pay rent for the next 45 days since they require a 45 day notice of breaking the lease.
Am I correct in assuming that them asking for 2x the rent to be paid now and for me to pay rent for the next 45 days goes against "735 ILCS 5/9-213.1) (from Ch. 110, par. 9-213.1)
Sec. 9-213.1. Duty of landlord to mitigate damages. After January 1, 1984, a landlord or his or her agent shall take reasonable measures to mitigate the damages recoverable against a defaulting lessee."?
What should be my next step?
Re: Landlord Required to Make "Reasonable Effort" to Re-Rent with Only Notice of Movi
No, you aren't correct.
Asking you to pay doesn't violate the statute.
Agreeing to pay doesn't violate the statute.
Paying doesn't violate the statute.
The way mitigation works is you walk away in breach and pay nothing.
Not only is the landlord required to re-rent as soon as reasonably possible, he has the incentive to do so because, until he does, he's got a vacant unit for which he is not getting any money. And no landlord in his right mind allows that to happen very long if he can help it.
Long story short: You have to wrong the landlord and be sued for it before you can claim that he failed to mitigate.
If he convinces you to pay and you do pay, then you are no longer in default, you have reached a settlement, and mitigation goes out the window.
By the way, "telling" the landlord doesn't cut it. To make surrender of the unit stick you have to put it writing and make sure you return all the keys. Otherwise he still does not have "legal" possession of the unit. He would technically have to go to court and get a court order giving him possession and the mitigation period wouldn't start until then.
Breaching a contract can get complicated and is fraught with consequences.
Re: Landlord Required to Make "Reasonable Effort" to Re-Rent with Only Notice of Movi
I was contacted by renters-rights.com(based in Chicago) through a listing I had on craigslist to sublet the apartment, and they told me that I would be able to break the lease without any further payments. Their service would cost 1/2 months rent. They told me that there is an ordinance in Chicago for an early lease termination process, and that I should not have to pay any more rent since the landlord did not make a reasonable effort to re-rent the apartment. I do want to play it safe and avoid causing any damage to my credit. Please read what they emailed me below and let me know if you think it is legitimate:
The early lease termination process is a mail notice procedure based on the specific language of the Chicago Residential Landlord and Tenant Ordinance [City of Chicago Municipal Code Title 5, Chapter 12, Residential Landlord and Tenant Ordinance].
The Chicago Residential Landlord and Tenant Ordinance “applies to, regulates and determines rights, obligations and remedies under every rental agreement entered into or to be performed after the effective date of this chapter, for a dwelling unit located within the city of Chicago…”
Not governed by the ordinance are:
a. Dwelling units in owner-occupied buildings containing six units or less; provided, however, that the provisions of Section 5-12-160 shall apply to every rented dwelling unit in such buildings within the city of Chicago.
b. Dwelling units in hotels, motels, inns, tourist houses, rooming houses and boarding houses, but only until such time as the dwelling unit has been occupied by a tenant for 32 or more continuous days and tenant pays a monthly rent, exclusive of any period of wrongful occupancy contrary to agreement with an owner; provided, however, that the provisions of Section 5-12-160 shall apply to every rented dwelling unit in such buildings within the city of Chicago. No landlord shall bring an action to recover possession of such unit, or avoid renting monthly in order to avoid the application of this chapter. Any willful attempt to avoid application of this chapter by an owner may be punishable by criminal or civil action.
The cause authorized for statutory termination usually arises from the lessor’s own acts and/or omissions constituting the material noncompliance…with a rental agreement:
ü Section 5-12-060 Abuse of Access (Illegal Entry).
ü Section 5-12-090 Failure to Identify Owner & Agent Name, Address, & Phone Number.
ü Section 5-12-100 Failure to Disclose Conditions Affecting Habitability, Code Violations Cited by City.
ü Section 5-12-110(A) Material Noncompliance with Rental Agreement or Building Code.
ü Section 5-12-110(F) (5) Failure to Provide Essential Services.
ü Section 5-12-150 Retaliatory Conduct by Agent or Owner.
ü Section 5-12-170 Failure to Attach Residential Landlord and Tenant Ordinance Summary to Lease.
Our job is to determine the appropriate initial notices that must be prepared and mailed to the lessor to set the process in motion.
We check municipal, county and state records; to determine if the lessor is or has complied with the ordinance; prepare any notices and documents required to facilitate the termination of the lease.
We will also monitor the lessor’s rental policy and behavior to establish if lessor is in compliance with the section 130(e) of the ordinance, which requires a good faith effort to re-rent the tenant's dwelling unit at a fair rental…
Our housing availability testers will contact your lessor several times before you officially end the tenancy and several times immediately after you vacate.
This establishes the lessor’s track record -- a pattern of legal misconduct or failure to comply with the ordinance. The requirement to attempt to re-rent comes from section 130(e) of the Chicago Residential Landlord and Tenant Ordinance.
The authority that renders the lease unenforceable when a lessor does not attempt re-rent comes from case law, when the issue has gone before a court.
Threats to pursue you to the ends of the earth and sue you are common but, lease termination cases usually do not get to the court stage.
Statistically, lessor have earned a near-zero in their duty to mintage damages, as the state law requires, the good faith effort requirement in the city ordinance.
They usually do not include the tenant’s apartment in listing, showing or offering available units. Our job is to catch them in the act of not listing, showing or offering your apartment.
Finally, we prepare the final termination notices, which include a detailed history of your lessor’s failure to attempt to re-rent and details of the statutory termination as well.
Re: Landlord Required to Make "Reasonable Effort" to Re-Rent with Only Notice of Movi
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tmc1284
I was told that I could break the lease however I would have to pay two months rent just to break it so I decided to attempt to find someone to sublet the apartment.
So you have a lease that allows you to terminate your lease term prior to its expiration by paying a two month penalty. You have the option of paying that agreed amount, or risking that you will incur a greater liability if your landlord is not able to find a replacement tenant within a two month period. If this is a multiple unit building or complex, be aware that they can fill every other unit in the complex before they re-fill your unit.
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tmc1284
Am I correct in assuming that them asking for 2x the rent to be paid now and for me to pay rent for the next 45 days goes against "735 ILCS 5/9-213.1) (from Ch. 110, par. 9-213.1)
As you have been told, no, you are not.
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Quoting tmc1284
What should be my next step?
You can (a) pay, (b) negotiate for a lower amount, or (c) do nothing and see what your landlord does.
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tmc1284
I was contacted by renters-rights.com(based in Chicago) through a listing I had on craigslist to sublet the apartment, and they told me that I would be able to break the lease without any further payments. Their service would cost 1/2 months rent.
They tell you that if you pay them money they might be able to get you out of your lease? For some reason I'm thinking of a saying about a fool and his money....
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Quoting tmc1284
They told me that there is an ordinance in Chicago for an early lease termination process, and that I should not have to pay any more rent since the landlord did not make a reasonable effort to re-rent the apartment.
You did not break your lease until you vacated and told your landlord that you were breaking your lease, something you told us only just happened. Unless you follow proper protocols with your landlord and define an actual move-out date, your landlord is in a very poor position to find a potential replacement tenant, as your lease remains in effect and if you say "I changed my mind" they won't have an apartment for that tenant.
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Quoting tmc1284
The early lease termination process is a mail notice procedure based on the specific language of the Chicago Residential Landlord and Tenant Ordinance [City of Chicago Municipal Code Title 5, Chapter 12, Residential Landlord and Tenant Ordinance].
They sent you an unsolicited ad for their services in response to your craigslist ad? Did you not indicate that you didn't want solicitations in response to your craigslist ad? Here's their office -- which appears to be a residence.
Do you know why they didn't identify an actual ordinance that would in any way invalidate the early termination clause that is set forth in your lease? You can take a look at Title 5, Chapter 12 of the municipal code right here, and see for yourself -- no such provision exists.
What the outfit seems to be stating is that if you pay them money they'll produce a notice to the landlord pursuant to which they state grounds, real or imagined, why you should be allowed to terminate your lease for cause -- that is, based upon an act or omission of the landlord that justifies early termination of your lease. As you have already broken your lease, even if we were to assume that the ostensible violation by your landlord weren't purely imaginary, it's too late for them to do that for you. You may, of course, contact them and ask them to clarify what they would actually do, and if they will provide a money-back guarantee.
These may be great people, devoted to a cause, or... not. But if they're spamming craigslist advertisers, over-promising, and offering no guarantee, I would be extremely skeptical of their business model and ethics.
Re: Landlord Required to Make "Reasonable Effort" to Re-Rent with Only Notice of Movi
I do have one other question.
When I first viewed the apartments I told the leasing office that I would only be willing to do a six-month lease and this was understood with the leasing office. I wanted to rent a 1BR in the building, but they did not have any available for one month and that I could move into a studio apartment for one month and then move into the 1BR unit for the remainder of the lease. I went ahead and signed the lease for one month for the Studio apartment without any written documentation/agreement on the lease term of the 1BR unit I would be moving into. One week after I moved into the Studio apartment, I was given the lease for the 1BR apartment and the lease term was one year. I told the same person who I told I would only be willing to do a total six-month lease term that the lease end date was incorrect, and I was told that he did not recall any verbal agreement or have any documentation of me requesting a six month lease term. It is a very large building so whether it was a bait and switch move or him simply not remembering I cannot say for sure. I did sign the lease for the second unit after arguing to no avail because of the cost I would have had to pay for a moving company and thinking it would not be this difficult to find a new tenant to sublet the unit.
So my question is, do I have any legal recourse regarding the fact that there was no written documentation/agreement of the lease term for the second unit I would be moving into when I signed the lease for the first unit?
Re: Landlord Required to Make "Reasonable Effort" to Re-Rent with Only Notice of Movi
If you say, "I only want a six month lease", they offer you a one-year lease, and you sign a one-year lease, what you have is a one-year lease.