A SLEEPING GIANT:
THE CHICAGO RESIDENTIAL LANDLORD AND
ANTHONY C. VALIULIS
When considering a move into a new apartment, what is the
most important thing that crosses a tenant’s mind? How much is
the rent? What is the neighborhood like? How close are the
schools? Any one of these questions, or perhaps all of them, are
sure to be important. But the most important question is probably
the one that most tenants do not even think about. Is the apartment
safe? And by safe we mean safe in ways that cannot readily be
seen. Obviously, if there is loose wiring or if the ceiling is falling
in or if there is some other obvious danger, most tenants probably
would not rent the apartment in the first place. Or if they do, they
will make sure that the landlord promises to fix the problems.
But what about the dangers that a tenant cannot see? The
hidden dangers? The latent defects? Those are the ones that are
really the most dangerous, dangerous because they cannot be seen,
because tenants cannot prepare for or avoid that which they do not
know. So they have no choice but to rely on the landlord. If the
landlord is aware of a dangerous condition, one that is not readily
apparent, one expects the landlord to tell the tenant about it. And
indeed in such a case a landlord has a duty to disclose hidden
defects of which it is aware.
But what about those hidden defects of which the landlord is
unaware? Who is responsible for them? The tenant? The landlord?
The question is an interesting one, with an equally interesting
answer. Although the common law does not impose liability on a
landlord for unknown defects, at least one major Illinois city
perhaps does. Through a little-used provision in its Landlord and
Tenant Ordinance, the city of Chicago has potentially taken a giant
step toward addressing this gap. But if it has, it has to date been a
WHO IS LEGALLY RESPONSIBLE?
Under current Illinois law, when a landlord retains control of
a portion of the leased premises (i.e., common areas such as
stairways, porches, and entranceways), the landlord has “the duty
to use ordinary care in maintaining that part of the premises in a
reasonably safe condition.” See Gengler v. Herrington, 219 Ill.
App. 3d 6, 11, 579 N.E.2d 412, 415 (2nd Dist. 1991). However, a
landlord is not responsible for injuries “caused by a defective
condition on the portion leased to a tenant and under the tenant's
control.” See id. Further, a landlord is not liable for injuries that
are not reasonably foreseeable; it is not an “absolute insurer” for
all injuries occurring on leased premises. See id., 219 Ill. App. 3d
at 11, 579 N.E.2d at 416. For the landlord to be liable, the tenant
must establish that it “had actual or constructive knowledge of the
existence of the defective or dangerous condition.” See id.
Thus, a landlord generally does not have a duty to inspect
leased premises for defects; instead, it is the tenant’s duty to
inspect the premises to determine their “safety and suitability.”
See Housh v. Swanson, 203 Ill. App. 3d 377, 383, 561 N.E.2d 321,
325 (2nd Dist. 1990). There are, however, exceptions to this
general rule. For instance, where a latent defect (one which is
hidden from knowledge and from sight and cannot be discovered
by the exercise of ordinary and reasonable care) exists at the time
of leasing and should have been known to the landlord, a landlord
will be liable for injuries arising from that defect. See Dapkunas v.
Cagle, 42 Ill. App. 3d 644, 647, 356 N.E.2d 575, 577 (5th Dist.
However, if the defect is of such a nature that the tenant can
or does discover it on his or her own, then the landlord is not liable
for any injuries caused by the defect. See Housh, 203 Ill. App. 3d
at 383, 561 N.E.2d at 325. Accordingly, whenever a landlord is
aware of facts that would lead a reasonable person to conclude that
a hidden danger might exist, then the landlord has a duty to see if
in fact that condition exists or not. In other words, under those
circumstances a landlord may indeed have a duty to inspect. If it
does not inspect, then it is charged with the knowledge that a
reasonable inspection would have given. See id.
There is an obvious problem with imposing liability only for
known defects, of course: it creates a situation in which ignorance
is not only bliss but also (perhaps) a rock-solid defense. In other
words, in order to avoid potential liability for dangerous conditions
that a landlord for whatever reason does not want to fix, a landlord
has a very strong incentive to put its head in the sand and keep
itself ignorant from ever finding out about those dangerous
conditions. For a landlord, what it does not know cannot hurt it.
The problem is, what the landlord does not know can very easily
hurt its tenant.
HISTORICAL ROOTS FOR GENERAL RULE
Still, the general rule remains that a landlord ordinarily does
not have an obligation to inspect. Why is that? From where did that
general rule come? The fact is, the lack of a duty to inspect has its
historical roots in a time long past and in a place far different from
the typical United States urban environment.
In fifteenth-century rural England, the typical leasehold was
agricultural in nature. See Irma W. Merrill, Landlord Liability for
Crimes Committed by Third Parties Against Tenants, 38 Vand. L.
Rev. 431, 433 (March, 1985). The lease of land was a conveyance,
meaning that the tenant paid rent to the landlord in exchange for
having complete dominion over the land. See id. Because the
tenant retained exclusive control over the land, he or she made all
necessary repairs to the property. See id. The landlord essentially
did not care about the condition of the property as long as it
collected rent. See id. However, with the development of
commerce and the growth of urban communities, the nature of the
leasehold changed. See id. at 433-34. As the differences between
the agrarian tenant and the town resident became apparent,
medieval England lawmakers recognized that keeping town
buildings in good repair was necessary to the safety of the
community. See id. Therefore, these lawmakers developed
borough customs, or codified rules, that strictly regulated the
maintenance of leased land and structures. See id.
United States courts generally followed these English rules in
formulating the landlord’s duties to its agrarian tenants. See id.
Similarly, United States courts expanded landlord liability to suit
the social and cultural changes in this country. See id.
Unfortunately, the expansion of landlord liability has not reached
far enough to suit today’s urban communities. That is because,
even today, a landlord does not have a general duty to inspect for
Although it may have made sense not to impose a duty to
inspect on a landlord in medieval rural Britain, it makes absolutely
no sense in a modern urban setting. Who better has the means to
discover hidden dangers than the owner of the property? Moreover,
it is to the benefit of the owner/landlord of the property to make
sure that the property is well-maintained, both externally and
internally. And there are good social policy reasons to put this duty
on the landlord. In almost every case the landlord is in a better
economic position to inspect for hidden dangers than the tenant.
This is especially true with lower income housing, housing
which more likely has hidden dangers. Indeed, for very similar
reasons, that is why most cities have ordinances that require a
landlord to provide a fit and habitable apartment to a tenant. In
Chicago, for example, a landlord is required to “maintain the
dwelling unit and common areas in a fit and habitable condition.”
See Chicago Municipal Code Section 5-12-110. How can a
landlord fulfill this obligation if it does not inspect for hidden
dangers? The fact is, it cannot. If an apartment is dangerous to the
health and welfare of its tenants, that apartment is not fit and
habitable, whether the danger is obvious or hidden. Thus, to insure
that its residential dwellings are fit and habitable, a landlord must
periodically inspect the apartment as part of its normal and
reasonable maintenance procedures.
So does this mean that a landlord has a duty to inspect if the
apartment is located in cities with ordinances requiring apartments
to be fit and habitable? Most landlords say no. They say that
despite the obligation of such ordinances, a landlord still has no
duty to inspect, at least no duty that runs to the tenant. Although
acknowledging, reluctantly, that perhaps it has such a duty in order
to avoid violating these ordinances, landlords continue to maintain
that, even if they violate the ordinance and a tenant is injured as a
result, that tenant has no recourse.
EXPAND COMMON LAW?
One solution to this problem is to expand the common law
regarding premises liability to eliminate notice requirements. All
this means is that a common law claim against a landlord for
injuries sustained on leased premises would be based on ordinary
principles of negligence. Such a cause of action would be based
on ordinary care, just as it is with respect to the common areas.
See Anglin v. Oros, 257 Ill. App. 3d 213, 217, 628 N.E.2d 873, 876
(1st Dist. 1993). As discussed above, however, under current law,
to show that the landlord breached his or her duty, the tenant must
establish that the landlord had actual or constructive knowledge of
the defect. See id. This means, of course, that a landlord may be
able to escape liability by not inspecting for latent defects.
However, if an ordinary negligence standard is used and
notice requirements are eliminated, a landlord would have to
inspect for latent defects or be in breach of its duty to the tenant.
Thus, the ordinary care standard will impose on the landlord a duty
to inspect. A landlord will not be able to escape this duty by
burying its head in the sand. Such a standard may require a little
more effort on the part of the landlord, but it ensures the safety and
habitability of leased premises for tenants.
EXPESS RIGHT OF ACTION UNDER CHICAGO
Unless injured tenants can bring actions for damages against
those landlords who do not have actual or constructive notice of a
pre-existing latent defect, all landlords will have a tremendous
incentive to “bury their heads in the sand” regarding latent defects.
Indeed, landlords may actually take pains to avoid acquiring such
notice. The resulting harm to tenants is obvious. If landlords have
no obligation to inspect their property for latent defects, it is likely
that no defects will be repaired until after a tenant is first injured.
Only then will a landlord in many cases receive “notice” of the
defect and only then will it be required to take steps to abate the
problem. But by then it will be too late, at least for the tenant who
has been harmed.
This is what happened in Abbasi v. Paraskevoulakos. See
187 Ill. 2d 386, 718 N.E.2d 181 (Ill. 1999). In that case, the
landlords owned and managed an apartment building that
contained deteriorated lead-based paint, dust, and plaster. See 187
Ill. 2d at 389, 718 N.E.2d at 183. The landlords failed to do
anything to safely abate the lead hazard. See id. As a result, the
minor plaintiff, Sana Jamil Abbasi, was lead-poisoned and suffered
permanent lead-related injuries. See id. Had a duty to inspect been
imposed on the landlords, they surely would have discovered the
lead hazard and no one would have been injured.
Without a duty to inspect, to be held responsible, a landlord
had to have knowledge, actual or constructive, of the lead hazard.
Without actual or constructive knowledge of the lead hazard, the
plaintiff had no claim. However, in addition to the negligence
claim, the Abbasi plaintiff attempted to bring a claim under the
Residential Landlord and Tenant Ordinance (“Landlord/Tenant
Ordinance”). See Abbasi, 187 Ill. 2d 386, 718 N.E.2d 181. By its
plain language, Section 5-12-110(e) of the Landlord/Tenant
Ordinance expressly gives injured tenants a private right of action
for damages against landlords who violate the ordinance,
regardless whether a particular violation is willful or innocent:
Damages and Injunctive Relief. If there is
material noncompliance by the landlord with the
rental agreement or with Section 5-12-070, the
tenant may obtain injunctive relief and/or recover
damages by claim or defense. This subsection
does not preclude the tenant from obtaining other
relief to which he may be entitled under this
chapter. (Emphasis supplied.)
Thus, in addition to the “other relief [available] under this
chapter,” an injured tenant also has the independent right to sue the
landlord for damages under Section 5-12-110(e) for materially
violating Section 5-12-070. Any other interpretation would render
the second sentence of Section 5-12-110(e) meaningless. Most
importantly, the ordinance does not condition liability on the
landlord’s awareness of a given hazard.
Section 5-12-070 requires landlords to maintain leased
premises “in compliance with all applicable provisions of the
Municipal Code and [to] promptly make any and all repairs
necessary to fulfill this obligation.” Elsewhere, the
Landlord/Tenant Ordinance defines “material noncompliance”
with Section 5-12-070 to include, among other things, a failure to
maintain the apartment in habitable condition:
Failure to maintain floors, interior walls or
ceilings in sound condition and good repair;
failure to maintain windows, exterior doors or
basement hatchways in sound condition and
repair; failure to maintain stairways or porches in
safe condition and sound repair; failure to
maintain stairways or porches in safe condition
and sound repair; and failure to maintain the
dwelling unit and common areas in a fit and
habitable condition. See Landlord/Tenant
Ordinance, §5-12-110; emphasis supplied.
Thus, if there is “material non-compliance…with Section 5-
12-070,” the tenant can “recover damages.” Personal injury
“damages” are “damages” and thus should be recoverable under
this provision. There are no conditions, prerequisites, or
qualifications. “Damages” are nowhere defined as a return of rent
or some other limited or contractual form of relief. The ordinance
simply says “damages,” and “damages” under any sense of the
word include personal injuries.
If the City Council had wanted to exclude such damages, it
could have explicitly said so in any number of ways. That it chose
not to, that it instead deliberately used broad language that
encompasses personal injuries, must mean that the City Council
meant what it said, that an injured tenant has the right under the
Landlord/Tenant Ordinance to sue for damages.
In addition to damages, Subsection (e) authorizes the tenant
to pursue any “other relief” to which he or she may be entitled
under other subsections. Such other remedies may be pursued
independently and concurrently. But nothing in Subsection (e)
requires a tenant to fulfill conditions found in other provisions
(such as notice) or to exhaust other remedies before pursuing
damages. And like Subsection (e), none of the remaining
subsections purports to be exclusive.
It is axiomatic that in interpreting statutes and ordinances
courts are obligated to give the language used by the legislature its
plain and ordinary meaning. See Williams v. Illinois State
Scholarship Comm’n, 139 Ill. 2d 24, 52, 563 N.E.2d 465, 477
(1990). Courts are also bound to attribute meaning to all sections
of a statute or ordinance. See County of Winnebago v. Industrial
Comm’n, 34 Ill. 2d 332, 334, 215 N.E.2d 258, 260 (1966)
(presence of “mere surplusage…is not to be presumed in statutory
construction”). Here, the plain, unambiguous language of
Subsection 5-12-110(e) expressly and unequivocally gives injured
tenants a private right of action for damages against landlords who
violate the Landlord/Tenant Ordinance. Any other interpretation
would render Subsection 5-12-110(e) a nullity.
A bedrock purpose of the Landlord and Tenant Ordinance is
“to protect and promote the public health, safety, and welfare” of
tenants by requiring landlords “to maintain and improve the quality
of housing.” See Landlord/Tenant Ordinance, § 5-12-010. For
several reasons, that purpose can only be fully achieved if there is
a private civil right of action. Without a private right of action, the
formidable burden of enforcing the Ordinance falls exclusively
upon already overburdened city agencies. As a practical matter,
therefore, the threat of civil liability is the only efficient means of
Nevertheless, in Abbasi, the Illinois Supreme Court declined
to recognize a private right of action under this Ordinance, at least
for injuries resulting from lead poisoning. The Court declined to
explain its reasoning why the express language of the Ordinance
did not give a tenant an express right to sue for injuries. The
Court’s decision, however, is limited to lead poisoning injuries.
Therefore, there is still an open issue as to whether a tenant
suffering from other types of injuries has a right to sue for damages
under the Landlord/Tenant Ordinance.
CHICAGO’S HOME RULE POWER
Even if a tenant may be able to bring an action for injuries
(not related to lead poisoning) under the Landlord/Tenant
Ordinance, the landlords say that the ordinance is an invalid
exercise of Chicago’s home rule power under Article VII, §6(a) of
the Illinois Constitution. They say that it is beyond a city’s home
rule power to create civil remedies for the violation of a
landlord/tenant ordinance. However, in City of Evanston v.
Create, Inc., the Illinois Supreme Court effectively disposed of the
issue. See 85 Ill. 2d 101, 421 N.E.2d 196 (1981). There, the
Supreme Court upheld Evanston’s Residential Landlord/Tenant
Ordinance as a valid exercise of home rule power under Section
Under this grant of power the home rule unit
possesses the same power as the
state….Therefore, the home rule unit of Evanston
may act under its constitutionally granted police
powers to pass reasonable regulations concerning
the activities of landlords and tenants in order to
protect the public health, safety, morals, and
welfare. See 421 N.E.2d at 202 (emphasis
supplied). See also, City of Elgin, 660 N.E.2d at
880 (“home rule units have all the powers of the
sovereign, limited only by the constitution itself
and the General Assembly,” citing City of Urbana
v. Houser, 67 Ill. 2d 268, 273, 367 N.E.2d 692
Most importantly, in upholding the ordinance in City of
Evanston the Court expressly acknowledged that a local governing
body (like Evanston or Chicago) has a strong local interest (and
thus the right and power) to define not only the duties of a landlord
and its tenant but also the remedies imposed for violating those
The City of Evanston is a densely populated and
highly urbanized municipality with a large
number of rental units. The City, therefore, has a
strong interest in protecting both the landlord and
tenant and in providing each with a detailed
description of their respective rights, duties and
remedies. Id. at 200 (emphasis supplied).
Like Evanston, Chicago has a substantial interest in
regulating relations between landlord and tenant. Indeed, as the
largest municipality in the most highly urbanized area of the state,
Chicago urgently needs to make creative use of flexible home rule
powers in regulating landlord-tenant relations. See id. at 201.
Accordingly, the Landlord/Tenant Ordinance is a legitimate
exercise of Chicago’s home-rule power. Similarly, as in City of
Evanston, it is also a legitimate use of home rule power for the
City of Chicago to provide civil remedies for violations of its
Significantly, the City of Evanston Court recognized that
Evanston’s ordinance did not alter any principle of contract law but
that, if it did, it would be permissible to do so:
The State has always had the right under police
powers to impose conditions on private
contractors as long as it was necessary for the
public good. Consequently, it is beyond question
that the State, acting in a reasonable manner in the
exercise of its police powers, had the right to
adopt statutes which impinged on the activities of
private parties to a contract. Id. at 202, citations
As already noted, of course, home rule units have all the
powers of the state except as expressly limited. With respect to the
ordinances, therefore, certainly the City of Chicago has the home
rule authority to require landlords to find and eliminate latent
hazards that directly affect the health and welfare of its residents.
Indeed, the Constitution expressly gives a home rule unit the right
to impose regulations that protect the public health. Ill. Const.
1970, art. VII, §6(a). That is what the Chicago ordinance does;
that is what the private right of action under the ordinance will
promote; and that is why the City had the power to enact these
provisions and to provide injured parties with the right to sue for
damages caused by their violation.
Recognizing that an injured tenant has a private right to sue
for damages would not create a novel civil tort nor would it invent
a new common law tort. It would simply acknowledge that an
injured tenant has a civil remedy for a landlord’s non-compliance
with the ordinances at issue. As explained by the Court in City of
Evanston, this is a valid exercise of home rule power, an exercise
which in no way interferes with the administration of justice:
The fact that the provisions of the Ordinance here
in question define notice procedures, duties of the
parties, and remedies available does not interfere
with our court system. Courts are regularly called
upon to enforce or interpret municipal ordinances.
421 N.E.2d at 202 (emphasis supplied).
In City of Evanston, the Court confirmed that a home rule
unit can fashion appropriate remedies under a landlord/tenant
ordinance. A criminal fine is one such remedy. A civil action for
damages is simply another remedy. Both types of remedies help
ensure compliance with the ordinance and thus protect the public
heath. Under City of Evanston, both should be within a home rule
unit’s power. Indeed, if a city can impose criminal or quasi-
criminal penalties on someone who violates an ordinance, then it
follows that the City can also impose a lesser remedy, such as a
civil suit for damages.
In addition to the Court’s decision in City of Evanston, which
acknowledged that a home rule unit has the power to define tenant
remedies, several decisions recognize that an ordinance, expressly
or by implication, can authorize a private right of action. E.g.,
Wolinsky v. Kadison, 114 Ill. App. 3d 527, 534-535, 449 N.E.2d
151, 157-58 (1st Dist. 1983) (recognizing condominium owner’s
express right of action for damages against condominium
association under Chicago Condominium Ordinance). See Selvy v.
Biegel, 283 Ill. App. 3d 532, 670 N.E.2d 784 (1st Dist. 1996) (court
appeared to assume without discussion that a minor tenant had
private right of action for lead injuries under Chicago’s
Landlord/Tenant Ordinance). See also Reuben H. Donnelley Corp.
v. Brauer, 275 Ill. App. 3d 300, 655 N.E.2d 1162 (1st Dist. 1995)
(suggesting that, if the plaintiff had been a member of the protected
class, he might have had a private cause of action under an
Further, the home rule power was meant to be extremely
broad, as it significantly changed the rule prevailing before the
1970 Constitution. Before that time, under what was known as
Dillon’s Rule, units of local government were deemed to have only
those powers which were specifically granted to them by
Constitution or by statute. The 1970 Constitution reversed that
underlying presumption. Now, home rule units are deemed to have
all powers pertaining to their government and affairs co-extensive
with those of the state except as specifically limited. See
Constitutional Commentary, Art. 7, Section 6.
The Illinois Supreme Court has often stated that home rule
units have all of the powers of the sovereign, limited only by the
Constitution and the General Assembly. See City of Elgin, 660
N.E.2d at 881. Indeed, the “powers and functions of home rule
units [are to be] construed liberally”, Ill. Const. 1970, Art. VII,
Section 6(m), and that “home rule units are given broad powers to
legislate.” See City of Chicago v. Roman, 292 Ill. App. 3d 546,
551, 685 N.E.2d 967 (1st Dist. 1997). Thus, the City of Chicago
has both the power and the right to require landlords to find and
eliminate latent defects—and to allow tenants, injured by a
landlord’s failure to do so, to sue for damages.
The Chicago Landlord/Tenant Ordinance is a sleeping giant.
It potentially has the power to dramatically change the landscape in
premises liability. As written, it expressly allows a tenant injured
by a latent defect to sue his or her landlord for damages whether or
not that landlord had any prior knowledge of the defect. To date,
however, this giant still sleeps. It is only a matter of time before it