BERNSTEIN, ESQ., ON CHICAGO TENANTS' RIGHTS
By: Paul Bernstein, Attorney At Law
© Paul Bernstein, Esq. 1998, All Rights Reserved
Chapter 14: ATTORNEY'S FEES IN EVICTION COURT
Section 5-12-180 of the Chicago Ordinance on Landlord and Tenant, entitled "Attorney's Fees", reflects the City of Chicago's concern for the condition of residential housing by, in essence, providing that if the tenant is successful in the tenant's assertion of retaliatory eviction or in pursuing any of the tenants rights under the RLTO, that the tenant "shall be entitled to all court costs and reasonable attorney's fees..."
The damages allowed a tenant for retaliatory actions of a landlord, as defined in Section 5-12-150 of the ordinance, is: "not more than two month's rent or twice the damages sustained by him, whichever is greater, and reasonable attorney's fees." Most lawyers may assume that the amount of legal fees are directly related to the amount of damages and therefore the remedy of getting attorney's fees is a hollow one at best. I do not believe that assumption is correct and believe that there is ample authority in Illinois in other, related areas that effectively assure that if the lawyer for the tenant has acted in a reasonable and responsible matter and devoted only so much time to a given matter as the nature of the matter and the actions of the landlord warranted, then, in such events, the lawyer for the tenant will receive a fair legal fee based on the number of hours properly and necessarily devoted to the tenants case.
Example: your rent is $500.00 per month and your landlord is guilty of many areas of neglect, such as: inadequate heat in the winter, cockroaches, leaking window panes when it rains, dangerous electrical outlets, inadequate hot water, etc. You complained to your landlord and with the help of a community-based tenant's organization, you have properly served your landlord with demands for the correction of these building code violations, without success. Accordingly, you started to pay reduced rent, but are promptly served with an eviction lawsuit.
To defend you in the eviction court and to properly pursue your defense and counterclaim of retaliatory eviction may take a lawyer from 5 hours to 50 hours of effort, depending on the attitude of your landlord and the landlord's attorney. Suppose it takes 50 hours. If a lawyer is charging $150.00 per hour (if you qualify, you may be entitled to a lawyer without fee from a legal clinic or government funded, public interest law firm.), 50 hours of work would warrant a fee of $7,500.00. Might any judge grant such a request for legal fees if your maximum recovery as the tenant/client is limited to $1,000.00 (twice the amount of your rent)?
A case I am involved with now on appeal may answer that question. However, in the interim, I suggest that the following cases and others provide the rationale for the position I have presented above:
Berlak v. Villa Scalabrini Home for the Aged: 284 Ill. App. 3d 231, a 1996 decision of the First District Illinois Appellate Court.
Majcher v. Laurel Motors, Inc.: 287 Ill. App. 3d 719, a 1997 decision of the Second District Illinois Appellate Court.
These cases hold, in effect, that even if the recovery by the injured party (the first case involved a nursing home resident and the second a purchaser of an automobile) is not significant in amount, that nevertheless, if there is a public policy evidenced by the wording and intent of the law to reward lawyers for taking on such cases that also provide a public benefit (the benefit being that corrective policies or procedures as a result of actual or potential litigation take place) that the legal fees properly documented and requested should be allowed by the court.
My argument and personal belief is that the same rationale that applied in the two cited cases should prevail in landlord and tenant disputes under the Chicago Ordinance. Time will tell. In the interim, hopefully, consumer-oriented lawyers should examine those two decisions and others and form their own opinions on whether the risk is worth the hoped for rewards.In an addendum to be added later, I will provide a memorandum of law on this topic that refers to the two cases mentioned above and others.
Internet Home page: http://members.delphi.com/bernsteinp/