462 N.E.2d 888 (Ill.App. 4 Dist. 1984), 4-83-0354, Glasoe v. Trinkle

Docket Nº:4-83-0354.
Citation:462 N.E.2d 888, 123 Ill.App.3d 132, 78 Ill.Dec. 769
Party Name:Merwin O. GLASOE, Plaintiff-Appellee, v. Jerry TRINKLE and Diane Trinkle, Defendants-Appellants.
Case Date:April 09, 1984
Court:Court of Appeals of Illinois
 
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Page 888

462 N.E.2d 888 (Ill.App. 4 Dist. 1984)

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.

Court of Appeals 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

Page 889

[78 Ill.Dec. 770] 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 [123 Ill.App.3d 133] 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...

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