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.
• 1, 2 This court has held that the prohibition of retention of a security deposit under the statute was not intended by the legislature to apply except where part or all of the security deposit is retained for claimed property damage. ( Applegate v. Inland Real Estate Corp. (1982), 109 Ill. App.3d 986, 991, 441 N.E.2d 379.) While the statute is thus not applicable to situations where there is a good-faith dispute over a deposit for reasons other than a claim for property damage, "a landlord has some burden to come forward with some evidence of a good faith dispute for other reasons in order to avoid a presumption that the deposit is being withheld because of a claim of damage." ( Hayward v. Tinervin (1984), 123 Ill. App.3d 302, 306, 462 N.E.2d 896.) Nothing found in this record suggests defendant withheld the deposit for any reason other than to recover $50 expended for attorney fees and damages to the apartment.
The trier of fact's decision on whether a tenant has been constructively evicted will not be reversed unless it is against the manifest weight of the evidence. Applegate v. Inland Real Estate Corp. (1982), 109 Ill. App.3d 986, 441 N.E.2d 379. • 5 Defendants rely upon § 16.02 of the lease as support for their argument that the loss of the parking spaces rendered the property untenantable:
• 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:
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.
• 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.
In Mallah, we recognized that the Act was intended by the legislature to apply only where part or all of the security deposit is retained for claimed property damage. Mallah, 130 Ill. App.3d at 817; see also Applegate v. Inland Real Estate Corp., 109 Ill. App.3d 986, 991 (1982). We determined that the Act is not applicable to situations where there is a good-faith dispute over a deposit for reasons other than a claim for property damage.
But the fact that some repair efforts were made also does not preclude a claim of constructive eviction. See Applegate v. Inland Real Estate Corp., 109 Ill. App.3d 986, 441 N.E.2d 379 (1982) (constructive eviction found because of roach infestation despite fact that landlord had sent an exterminator). Shaker also contends that Medtech has waived any claim of constructive eviction since it remained in the premises for many months after learning that the heating and cooling system was not functioning properly.
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.
" 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.