Glasoe v. Trinkle

• Decision Date: 09 April 1984
• Docket Number: No. 4-83-0354,4-83-0354
• Citation: 123 Ill.App.3d 132,78 Ill.Dec. 769,462 N.E.2d 888
• Parties: , 78 Ill.Dec. 769 Merwin O. GLASOE, Plaintiff-Appellee, v. Jerry TRINKLE and Diane Trinkle, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 888

462 N.E.2d 888

123 Ill.App.3d 132, 78 Ill.Dec. 769

Merwin O. GLASOE, Plaintiff-Appellee, v. Jerry TRINKLE and Diane Trinkle, Defendants-Appellants.

No. 4-83-0354.

Appellate Court of Illinois,

Fourth District.

April 9, 1984.

James Hagle, Land of Lincoln Legal Assistance Foundation, Inc., Champaign, for defendants-appellants.

John E. Maloney, Maloney & Davis, Urbana, for plaintiff-appellee.

TRAPP, Justice:

Defendants Jerry and Diane Trinkle appeal from a judgment of the circuit court of Champaign County striking count II of their counterclaim which sought damages for the loss of use and enjoyment of a leased duplex resulting from an alleged breach of an implied warranty of habitability. The narrow issue for our review is whether an implied warranty of habitability extends to a lease of residential real estate in the absence of a building code applicable to such real estate. We affirm.

On August 18, 1978, plaintiff and defendants entered into an oral agreement to rent, on a monthly basis, a duplex located in St. Joseph, Illinois. Defendants tendered a security deposit and rent, and took possession of the premises until October 17, 1981, when they were constructively evicted from the duplex as a result of an inoperable furnace. Plaintiff-landlord later filed the present complaint, charging that defendants owed him rent in the amount of $960 for the months of July through October 1981. Defendants answered the complaint, denied that rent was due and owing, and set up four counterclaims and affirmative defenses seeking: damages resulting from their constructive eviction (count I), damages as a result of the plaintiff's alleged breach of an implied warranty of habitability (count II), a return of defendants' security deposit (count III), and indemnification for collect phone calls made by plaintiff to defendants' phone (count IV).

On April 13, 1983, the trial court found that defendants had been constructively evicted; that they were entitled to rent credits for various bail bonds paid by defendants on plaintiff's behalf; and dismissed count II of defendants' counterclaim, entering judgment for the plaintiff in the amount of $152.69. With regard to defendants' second counterclaim, which is the only count before this court, the trial court reasoned that the counterclaim failed to state a cause of action because there was no building code applicable to the rental housing.

The sole issue presented in this appeal may be defined quite narrowly as whether the seminal opinion of Jack Spring, Inc. v. Little (1972), 50 Ill.2d 351, 280 N.E.2d 208, requires the existence of a building code to prove a breach of an implied warranty of habitability in a lease of residential real estate. In Jack Spring, the supreme court held that "included in the contracts, both oral and written, governing the tenancies of the defendants in the multiple unit dwellings occupied by them, is an implied warranty of habitability which is fulfilled by substantial compliance with the pertinent provisions of the Chicago building code." (50 Ill.2d 351, 366, 280 N.E.2d 208, 217.) Plaintiff argues that Jack Spring requires that there be an applicable building code before any duty arises to repair or improve leased premises, while defendants suggest that limiting Jack Spring to cities with building codes undermines the rationale of that opinion and unjustifiably discriminates between tenants living in cities with building codes and those living in areas where no building code exists.

The problem in the present case arises from the fact that the holding in Jack Spring was narrowly worded as applying to instances of building code violations while the reasoning of the court leads to the natural inference that the court was departing from the settled rule at common law that a landlord had no duty to repair or maintain leased premises, regardless of proof of a breach of a local building code. Quoting from Javins v. First National Realty Corp. (D.C.Cir.1970), 428 F.2d 1071, the court in Jack Spring noted:

" 'In our judgment the common law itself must recognize the landlord's obligation to keep his premises in a habitable condition. This conclusion is compelled by three separate considerations. First, we believe that the old rule was based on certain factual assumptions which are no longer true; on its own terms, it can no longer be justified. Second, we believe that the consumer protection cases discussed above require that the old rule be abandoned in order to bring residential landlord-tenant law into harmony with the principles on which those cases rest. Third, we think that the nature of today's urban housing market also dictates abandonment of the old rule.' " (50 Ill.2d 351, 363, 280 N.E.2d 208, 215.)

In Pole Realty Co. v. Sorrells (1981), 84 Ill.2d 178, 49 Ill.Dec. 283, 417 N.E.2d 1297, the supreme court extended the implied warranty of habitability to single dwelling units subject to municipal building codes affirming that the implied warranty of habitability applied to all leased premises and not just multiple dwelling units, but the court did not decide whether the implied warranty applied in the absence of a building code. The court in Pole Realty recognized that the reasoning articulated in Jack Spring did not justify a restriction of its holding, but, nevertheless, the breach in Pole Realty was also alleged to have occurred because of violations of the Chicago building code. The court in Pole Realty did cite to several cases where proof of a breach of the implied warranty was held not to require evidence of building code violations, but these cases were not cited for such propositions. Foisy v. Wyman (1973), 83 Wash.2d 22, 515 P.2d 160; Mease v. Fox (Iowa 1972), 200 N.W.2d 791; Lemle v. Breeden (1969), 51 Haw. 426, 462 P.2d 470.

Although defendants would have us read Jack Spring as creating an implied warranty of habitability to apply to all leased real estate, two decisions in other districts of this appellate court have limited the rule in Jack Spring to cases alleging building code violations.

In Dapkunas v. Cagle (1976), 42 Ill.App.3d 644, 1 Ill.Dec. 387, 356 N.E.2d 575, a tenant sued her landlord for personal injuries she sustained as a result of the landlord's failure to maintain stairs leading to her apartment. Relief was sought on theories of negligence and implied warranty of habitability, although no building code violations were alleged. The fifth district of the appellate court affirmed the dismissal of plaintiff's...