Paul Bernstein, Attorney at Law
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On Chicago Tenants' Rights - Chapters

By: Paul Bernstein, Attorney At Law

Paul Bernstein, Esq. 1998, All Rights Reserved


Sometimes, circumstances force us to take desperate measures. Suppose you signed a one-year lease with your landlord but then, due to a family emergency, you have to leave the state immediately. Are you liable for the full rent until the end of your lease?

If your apartment is covered by the Chicago Ordinance on landlord and tenant, then the City of Chicago comes to your partial rescue. Section 5-12-120 entitled "Subleases" requires that the landlord make a good faith effort to re-rent your apartment, at a fair rental. Further, the landlord must accept a reasonable sublease proposed by the tenant and without an assessment of additional fees or charges.

If the landlord succeeds in re-renting your apartment, then you are only responsible for the rent that the landlord lost (to the end of your written lease). Ideally, this might be next to nothing, particularly if you had some advance notice of your need to move and acted in a business like fashion and promptly notified your landlord of your intended move. In any event, the landlord is also entitled to reasonable advertising costs in seeking to re-rent your apartment.

But, how can you prove the landlord made a "good faith" effort to re-rent your apartment. Or, suppose your apartment unit is not covered by the Chicago Ordinance. What then?

The State of Illinois comes to your rescue. Chapter 735 of the Illinois Compiled Statutes deals with Civil Procedure. Section 5/9-213.1 provides that "After January 1, 1984, a landlord or his or her agent shall take reasonable measures to mitigate the damages recoverable against a defaulting lessee." To "mitigate" means to reduce or eliminate.

However, even with the Chicago Ordinance and the State law, how can you prove whether or not the landlord did what they were supposed to do? This issue was presented to the Illinois Appellate Court in the case of "Joseph T. Snyder, Jr., vs. John C. Ambrose, decided on August 30, 1994.

In the Snyder v. Ambrose case, the landlord filed suit to collect rents from the defendant. The tenant/defendant took the position that the landlord had the responsibility to introduce evidence at the trial regarding the landlord's efforts to mitigate the landlord's damages. Failing so to do, the tenant argued, should bar the landlord from collecting any rent from the tenant.

The Appellate, in ruling in favor of the tenant, stated:

"We believe that the burden of establishing mitigation of damages should be shouldered by the landlord…the plaintiff here was required to establish mitigation of damages which would satisfy the court that he had fulfilled his statutory duty and properly proved his damages."

In holding for the tenant, the court stated:

"Because proof of mitigation of damages was necessary for the plaintiff to prevail and no evidence was presented relative thereto, we reverse the judgment of the trial court…."

As always, be very certain to document your actions. Write letters to your landlord and keep copies. If your landlord does not react in a business like fashion, write to your landlord about that too. If time permits, try your best to get a new tenant to sublease your apartment. Remember, that the landlord has the right to reasonably approve your "substitute" tenant. But if all else fails, even with your best efforts, in a strong rental market like Chicago, there will hopefully be a replacement tenant around the corner. If sued by your landlord, remember your rights, including the fact that the landlord will have to prove what he or she did to re-rent your apartment and reduce or "mitigate" their damages.

Paul Bernstein
Attorney At Law
333 E. Ontario St.
Chicago, IL 60611
(312) 951-8451
Fax: (312) 280-8180


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