# Jack Spring, Inc. v. Little > Illinois Supreme Court · January 28, 1972 · 50 Ill. 2d 351 URL: https://www.frixlaw.com/law-library/cases/9884865 ## Case - **Full name:** JACK SPRING, INC., Appellee, v. EMMA LITTLE, Appellant; SUTTON & PETERSON, INC., Appellee, v. ZELETA PRICE, Appellant - **Court:** Illinois Supreme Court - **Decided:** January 28, 1972 - **Citations:** 50 Ill. 2d 351; 280 N.E.2d 208; 1972 Ill. LEXIS 494 - **Precedential status:** Published - **Opinion:** Dissent by Ryan - **Judges:** Irving Goodman and Nathan Einhorn - **Cited by:** 137 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9884865 ## Opinion text Mr. Justice Ryan, also dissenting: I concur with that part of the majority opinion which deals with appeal bonds. Also, I do not disagree with the necessity, as expressed by the majority, of moving from the strict principles of the common law concerning the landlord and tenant relationship to a position more responsive to the needs of present day situations. However, I disagree with the result reached by the majority and I do not believe that in order to achieve the desired results we need to design a concept called an “implied warranty of habitability” which as applied to the facts in this case I deem to be pure and simple legal fiction. The concept of warranty of habitability has been used by courts in cases where the condition of the premises let were such as to render them uninhabitable and the courts have held that because of the condition of the premises the lessee was justified in vacating them and was not bound by the conditions of the lease. (Smith v. Marrable, 152 Eng. Rep. 693 (Ex. 1843); Pines v. Perssion (1961), 14 Wis.2d 590 , 111 N.W.2d 409 ; Lemle v. Breeden (1969), 51 Hawaii 426 , 462 P.2d 470 .) However, neither here nor in Javins v. First National Realty Corp. (D.C. cir. 1970), 428 F.2d 1071 , is the condition of the premises at the beginning of the tenancy of concern. Both this case and Jazdns are concerned with the obligation of the owner to repair the premises covered by the lease. To arrive at a solution of this question it is unnecessary to expand the theory of warranty of habitability. A lease is both a conveyance of an interest in real estate and a contract. (51c C.J.S., Landlord and Tenant, sec. 202 (1) (2) (3).) By virtue of the contractual aspect of the relationship between the lessor and the lessee, the lessor undertakes to perform certain covenants (express or implied), and in turn the lessee likewise undertakes to perform certain covenants (express or implied), including the covenant to pay rent. Covenants in leases are not necessarily mutual but will be considered as dependent or independent according to the intention of the parties. They are generally treated as independent in the absence of a clear indication to the contrary. (3 Thompson on Real Property (1959), sec. 1115.) Under the common-law rule the lessor had no duty to repair the premises in the absence of an express covenant to do so, and the express covenant to repair was generally considered to be independent of the lessee’s covenant to pay rent. 3 Thompson on Real Property (1959), sec. 1115, p. 396. However, there has been displayed with increasing frequency a tendency on the part of the courts to soften the harshness of the common law by applying to the construction of leases the guidelines applicable to the construction of contracts. (3 Thompson on Real Property (1959), p. 377; 6 Williston on Contracts, 3d ed. (Jaeger), sec. 890A (1962).) By giving consideration to the contract feature of the lease, the courts have in some cases .construed leases as containing implied covenants by the lessor to repair the premises. In cases where a legislative body has made a policy judgment by .enacting statutes or building codes which impose duties on the property owner, the courts have implied therefrom obligations of the lessor to repair and have construed the lease as containing an implied covenant by the lessor to repair the premises. Marini v. Ireland (1970), 56 N.J. 130 , 265 A.2d 526 ; Pines v. Perssion (1961), 14 Wis.2d 590 , 111 N.W.2d 409 . The housing code of the city of Chicago (Municipal Code of Chicago, pars. 78 — 11 through 78 — 20) imposes certain obligations upon an owner of dwelling units to repair and maintain the same. In keeping with this expression of legislative intent I would imply in every lease covering residential property within the purview of the housing code of the city of Chicago an implied covenant by the lessor to repair the premises in keeping with the requirements of the housing code. This court has held in Schirr v. Gould & Co. (1960), 18 Ill.2d 538 , that the requirements of the city code are as much a part of the contract as if they had been enumerated by the parties. Under this authority such an implied covenant to repair is appropriate. Possibly my preference for the use of the term “implied covenant” instead of “implied warranty of habitability” as used by the majority is only a matter of semantics. However, I prefer the covenant designation because it definitely indicates an obligation or an undertaking by the lessor as part of the lease itself. The term “warranty,” however, generally carries with it the idea of a holding out or a representation thereby inducing another to act. (8 Williston on Contracts, 3d ed. (Jaeger), sec. 970.) Although the concept of a representation or an inducement may be appropriate in cases where the lessee has been justified in abandoning the premises because of its original condition, as in Lemle and Pines, to apply the term to a simple situation concerning repairs seems to be needlessly indulging in what may possibly be a confusing fiction. The majority would extend their “warranty” only to multiple unit dwellings and would measure the extent of the warranty by substantial compliance with pertinent provisions of the code. Since the housing code of the city of Chicago applies to all dwellings and family units (Municipal Code of Chicago, pars. 78 — 11.1, 78 — 13) and imposes certain obligations to maintain and repair upon the owner of single-unit dwellings as well as multiple-unit dwellings, I fail to understand the reason for the distinction. Applying the accepted principles of contract law stated in Schiro, I would imply the full obligation to repair expressed by the housing code as a part of every lease of dwelling units covered by the code. What then is the remedy of the lessee on the breach of covenant to repair? First, the tenant should have the right to rescind the contract and abandon the premises and be relieved from any further obligation under the lease. This is in the nature of the concept of constructive eviction. (3 Thompson on Real Property (1959), sec. 1132, pp. 491, 492, 493, and 496.) However, such a remedy offers little hope to the urban tenant of today who, because of poverty or lack of available housing, may in a sense be locked into his unfortunate situation. For these reasons alternative relief must be designed. I think this relief can be afforded within the traditional rules of contract law in the following manner. If the tenant elects not to treat the lease (contract) as rescinded and remains in the premises, his obligation to pay rent under the lease continues. A breach of a covenant to repair by the lessor does not absolve the tenant of his obligation to pay rent so long as he continues to occupy the premises. However, he should have the right to himself make the repairs which the lessor failed to perform and to offset against his obligation to pay rent the reasonable cost of the repairs which he has made. Marini v. Ireland (1970), 56 N.J. 130 , 265 A.2d 526 . It must be acknowledged that the above alternative also may afford no relief to the tenant because of the prohibitive cost of the repairs or his inability to procure the same. Therefore a further option should be extended to the tenant. If the tenant continues to occupy the premises after the breach by the lessor of his obligation to repair, and if the tenant himself does not repair the premises, then he is liable for rent at a diminished amount, the amount of the reduction being measured by the difference in the rental value of the premises with the covenanted repairs and the rental value of the premises without them. 11 Williston on Contracts, 3d ed. (Jaeger), sec. 1404. Looking now to the facts of the present case and accepting as true the allegations that the lessors in each of the cases consolidated herein breached their implied covenants to repair, are such allegations germane to the issues in a forcible detainer action ? I agree with the majority that such allegations are germane to the question of whether any rent is in fact due to the lessor when the termination of the tenancy is based on the failure to pay rent. Had the tenant repaired the premises when the landlord made his demand for rent due (Ill. Rev. Stat. 1969, ch. 80, par. 8), the tenant could have tendered him the difference between the rent and the cost of repairs and exhibited a receipt for the repairs which he had made. If the landlord refused the amount so tendered and instituted the forcible detainer action, then the tenant could plead the breach of the covenant by the landlord, the making of the repairs by the tenant, and the cost of the same, and could tender the difference if the cost of the repairs were less than the rent due. If the tenant does not make the repair, then upon the demand for rent being made (Ill. Rev. Stat. 1969, ch. 80, par. 8), and in order to prevent the termination of the tenancy, he must tender an amount of rent equal to the reasonable rental value of said premises in the unrepaired condition; and if this amount is refused by the landlord and a forcible detainer action instituted, the tenant should in his answer be permitted to plead the breach of the covenant to repair and the reduced rental value caused by the breach, and should tender the reasonable rental value of the premises. In the cases now before us the tenants did not abandon the premises, they did not make the repairs and neither defendant has alleged that he was in any way damaged by the breach of the implied covenant to repair. In fact, not only does the defendant Price fail to allege any damages but he fails to ask for any offset or relief of any kind against the payment of rent and seeks only to force the plaintiff to comply with the alleged implied covenants to repair. As to the defendant Little, she does not allege that she was in any way injured or damaged by the breach of the covenants; still she alleges that by virtue of the landlord’s breach of these covenants she is entitled to damages and to offset such damages against rent. Such an allegation is not sufficient to sustain a claim for damages and was properly stricken by the court. (Klatz v. Pfeffer (1928), 333 Ill. 90 , 15 I.L.P., Damages, p. 519; 25 C.J.S., Damages, sec. 130.) Obviously the premises had some rental value and absent some unusual damages flowing from the alleged breach of the covenant there would not be a total setoff against the rent due. The answer alleges no such damages. Under the rationale of the majority opinion these allegations do not set forth anything germane to the question of whether any rent was in fact due to the plaintiffs. The purpose of the affirmative allegations was not to secure relief from defendants’ breach of a covenant to repair. The obvious reason for the failure to pay rent and the end which defendants seek to accomplish by the affirmative defenses is clearly apparent from an allegation found in both answers to the effect that the defendant has not refused to pay rent but is withholding rent until the plaintiff repairs the premises so as to render the same habitable and in compliance with the code. Such an allegation contains nothing germane to the question of whether any rent is due to the plaintiffs. In fact it constitutes an admission that rent is due. Thus defendants have without legislative authority taken it upon themselves not only to determine under what conditions and when they will withhold their rent payments but also to withhold rent completely and indefinitely until compliance is had with the implied covenants. Section 11— 23 of the Illinois Public Aid Code (Ill. Rev. Stat. 1969, ch. 23, par. 11 — 23) authorizes the withholding of rent on accommodations occupied by recipients of public aid in the event that the building containing the accommodations violates a housing code. However, the statute does not authorize an indefinite or total withholding of rent. If violations are corrected within a 90-day period, the statute provides that the total amount of the rent withheld shall be paid over to the landlord. If the violations are not corrected within the 90-day period, 20% of the rent withheld is assessed as a penalty and the balance is paid over to the landlord. A similar procedure is prescribed for each 30-day period following the initial 90-day withholding. Defendants’ self-help scheme has gone far beyond the statutory program for compelling the lessor to make repairs in dwellings occupied by public aid recipients. In my opinion the defendants should seek some forum other than a forcible detainer action in which to compel compliance with the housing code. If rent withholding is an effective instrument to accomplish this end, then I suggest that legislative authorization be sought as in the case of welfare recipients. Because of the failure of the answers to allege any damages flowing from the alleged breach of covenants to repair and because of the failure of the answers to disclose a willingness to pay any rent until the repairs have been made, it is my opinion that the trial court properly struck the affirmative allegations of the defendants’ answers. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9884865. Public record. Not legal advice.