• 1 A constructive eviction occurs where a landlord has done "something of a grave and permanent character with the intention of depriving the tenant of enjoyment of the premises." ( Applegate v. Inland Real Estate Corp. (1982), 109 Ill. App.3d 986, 989, 441 N.E.2d 379, 382.) Because persons are presumed to intend the natural and probable consequences of their acts, constructive eviction does not require a finding that the landlord had the express intention to compel a tenant to leave the demised premises or to deprive him of their beneficial enjoyment.
• 1, 2 Constructive eviction is defined as something of a serious and substantial character done by the landlord with the intention of depriving the tenant of the beneficial enjoyment of the premises in accordance with the terms of the lease. ( Applegate v. Inland Real Estate Corp. (1982), 109 Ill. App.3d 986, 441 N.E.2d 379.) The court in John Munic Meat Co. v. H. Gartenberg Co. (1977), 51 Ill. App.3d 413, 366 N.E.2d 617, stated:
Here, there was no direct proof that the deposit was being withheld under a claim that plaintiff had damaged the premises. In support of his contention that plaintiff was barred from recovery by his failure to show that the deposit was withheld under a claim of damage to the premises, defendant cites Applegate v. Inland Real Estate Corp. (1982), 109 Ill. App.3d 986, 441 N.E.2d 379. There, the court held that the provision for recovery of double the deposit and for attorney fees did not come into play where a tenant had been constructively evicted and the landlord had held a deposit beyond the time frame of the statute claiming, unsuccessfully, that it was entitled to the deposit for unpaid rent. Plaintiff maintains that the legislation was intended to have a broader impact than a strict reading would indicate.
" Am. Nat'l Bank Trust Co. v. Sound City, U.S.A., Inc., 67 Ill. App. 3d 599, 601, 385 N.E.2d 144, 145 (2d Dist. 1979). "The question of whether a tenant has been constructively evicted is one of fact." Applegate v. Inland Real Estate Corp., 109 Ill. App. 3d 986, 989, 441 N.E.2d 379, 382 (2d Dist. 1982); see also Dell'Armi Builders, Inc. v. Johnston, 172 Ill. App. 3d 144, 153, 526 N.E.2d 409, 412 (1st Dist. 1988). The Land Trust makes four claims: (1) that the alleged misrepresentation is not of a grave and permanent character; (2) that acts prior to execution of the lease cannot be considered for constructive eviction; (3) that the terms of the lease bar such a claim; and (4) that Reading Rock did not vacate the Premises in a reasonable amount of time.
In contrast, there is an Illinois common law tort for wrongful eviction. Miller v. Washington, 2013 WL 1340590, at *9 (N.D. Ill. March 30, 2013); see, e.g., Burnex Oil Co. v. Floyd, 281 N.E.2d 705, 707 (Ill. App. Ct. 1971); Cochrane v. Tuttle, 75 Ill. 361, 361 (1874); Leiter v. Day, 35 Ill. App. 248, 251 (1889); 24 Ill. Law and Practice Landlord and Tenant § 124 ("[A] tenant who has been evicted may sue for recovery of possession or maintain an action for damages because of the eviction.") (West 2019) (citing Applegate v. Inland Real Estate Corp., 441 N.E.2d 379, 382 (Ill. App. Ct. 1982); Gillette v. Anderson, 282 N.E.2d 149, 151-52 (Ill. App. Ct. 1972)). A tenant can sue for damages where the landlord has constructively evicted him by doing "something of a grave and permanent character with the intention of depriving the tenant of enjoyment of the premises."
However, the tenant may not abandon the premises before allowing the lessor a reasonable opportunity to remedy the problem. ( Applegate v. Inland Real Estate Corp. (1982), 109 Ill. App.3d 986, 990, 441 N.E.2d 379, 383.) The question of whether a tenant has been constructively evicted is one of fact, and the decision of the trier of fact will not be reversed unless against the manifest weight of the evidence.
See Shaker & Assocs., Inc., 733 N.E.2d at 873 (“But the fact that some repair efforts were made also does not preclude a claim of constructive eviction.”); Applegate v. Inland Real Estate Corp., 441 N.E.2d 379 (Ill.App.Ct. 1982) (constructive eviction found because of roach infestation despite fact that landlord had sent an exterminator). • The parties dispute, and the summary judgment record does not resolve, whether the problems identified in 2019 or 2020 were fully remedied, whether the same problems recurred in 2021, whether new problems arose in 2021, or whether the same problems continued throughout all three years and were not effectively cured.
" See also Applegate v. Inland Real Estate Corp., 109 Ill.App.3d 986, 989 (1982) (tenant moved in on October 29 and moved out October 31 because of roaches, filth, and disrepair). ¶ 21 Under the consumer protection principles that the Jack Spring court held applicable to leases, "the warranty of merchantability, [and] fitness for the particular purpose of the buyer *** are the criteria for determining whether warranties have been satisfied.
" Id. ¶ 55 Seagrou argues that the Act does not apply if the landlord withholds the security deposit for reasons other than as compensation for property damage, as it did in this case. In Applegate v. Inland Real Estate Corporation, 109 Ill. App. 3d 986, 991 n.1 (1982), this court held that the Act was "limited to situations where the lease term has expired and the lessor could only claim property damages as a reason to withhold part or all of the security deposit." A landlord has the burden to come forward with some evidence that there is a good faith dispute for reasons other than a claim of property damage in order to avoid a presumption that the deposit was withheld because of a claim of damages.
The trial court did not resolve this issue but instead held that section 1 of the Security Deposit Return Act was inapplicable because defendant retained plaintiff's security deposit as payment for September rent, not as reimbursement for damage to the apartment. See Applegate v. Inland Real Estate Corp., 109 Ill. App. 3d 986, 991 (1982) (section 1 of the Security Deposit Return Act "does not appear to be intended by the legislature to apply other than where a part or all of the security deposit is retained to compensate for claimed property damage"). The issue is complicated by the fact that the lease prohibits the security deposit from being applied to rent.