Wanland v. Beavers, 83-2599

• Court: United States Appellate Court of Illinois
• Citation: 130 Ill.App.3d 731,474 N.E.2d 1327,86 Ill.Dec. 130
• Docket Number: No. 83-2599,83-2599
• Parties: , 86 Ill.Dec. 130 Richard WANLAND and Theodor Wanland, Plaintiffs-Appellants, v. James BEAVERS and Velma Beavers, Defendants-Appellees.
• Decision Date: 04 February 1985

Page 1327

474 N.E.2d 1327 130 Ill.App.3d 731, 86 Ill.Dec. 130 Richard WANLAND and Theodor Wanland, Plaintiffs-Appellants,
v.
James BEAVERS and Velma Beavers, Defendants-Appellees. No. 83-2599. Appellate Court of Illinois,
First District, First Division. Feb. 4, 1985.

Page 1328

[86 Ill.Dec. 131] James R. Stuber, Park Ridge, for plaintiffs-appellants.

George E. Downs, Palatine, for defendants-appellees.

[130 Ill.App.3d 732] BUCKLEY, Justice:

The present appeal arises out of an action brought by Richard and Theodor Wanland to recover rent under the terms of a residential apartment lease. Plaintiffs alleged that defendants James and Velma Beavers had leased the premises from them but were later forced to vacate the apartment after extensive flooding occurred on December 3, 1982. Plaintiffs further alleged that pursuant to the terms of the lease they repaired the apartment within seven days of the flooding but defendants refused to reenter the premises or pay any further rent. Defendants denied that the premises were habitable and counterclaimed for damage to various items of personal property sustained as a result of the flooding. Defendants alleged that the sewer system in the apartment complex was in disrepair and inadequate, that plaintiffs were aware of a chronic flooding problem since flooding had occurred frequently in the past, and that plaintiffs allowed the sewer system to remain in disrepair after they were advised by the city of Elgin that the sewer system was inadequate and after the city had ordered them to repair it. Following a bench trial, judgment was entered in favor of defendants for $1,910 in damages plus costs. On appeal, plaintiffs contend: (1) that the judgment was against the manifest weight of the evidence; (2) that the trial court admitted improper evidence; and (3) that defendants were allowed to plead ordinance violations in an improper manner. We affirm.

Under the common law, a landlord is not liable for injury to the property of a tenant caused by defects in the demised premises absent an express warranty as to the condition of the premises or a covenant to repair. (See generally, 52 C.J.S. Landlord & Tenant § 423(3)(a) (1968).) There is a well recognized exception to this general rule in the case of latent defects which exist at the time of leasing. Where the landlord knows or should know of such a defect and where the defect could not have been discovered upon a reasonable examination of the premises by the tenant, the landlord will be held liable for damage to the property of the tenant occasioned by the latent defect. Hoffman v. King Resources Co. (1974), 33 Colo.App. 310, 520 P.2d 1052; cf. Thorson v. Aronson (1970), 122 Ill.App.2d 156, 258 N.E.2d 33 (recognizing the latent defect exception in those cases resulting in personal injury to tenant); see generally, 52 C.J.S. Landlord & Tenant § 423(3)(b) (1968); 49 Am.Jur.2d Landlord & Tenant § 788 (1970).

Thus, the doctrine of caveat emptor is generally applicable to lease agreements and it is the duty of the tenant to make an

Page 1329

[86 Ill.Dec. 132] examination of the demised premises to determine their safety and suitability. However, the law imposes a duty on the landlord to disclose any [130 Ill.App.3d 733] latent defects in the premises where the defect is likely to cause injury to the person or property of the tenant and where the defect is not readily discoverable by the tenant. Failure to do so may constitute fraud or negligence resulting in landlord liability for injuries caused by concealment of the latent condition.

Applying these principles to the case at bar, we must reject plaintiffs' contention that the judgment appealed...