Injustice Watch wrapped up its workshop series Know Your Building, Know Your Landlord last month, with nearly 100 people attending to learn how to find building code violations and research who owns their building.
The training followed Injustice Watch’s five-part series “The Tenant Trap,” which identified thousands of Chicago residential buildings with a chronic history of code violations and documented tenants’ efforts to exercise their rights to safe rental housing.
The project found that tenants who use a law allowing them to withhold a portion of their rent often end up in eviction court — even when the city sued their landlords over unsafe conditions in housing court. An analysis of the cases in eviction and housing courts showed cases against tenants moved nearly 10 times quicker than those against landlords, part of a judicial system favoring the property rights of landlords over the rights of their tenants.
Because many tenants asked the same questions during The Tenant Trap workshops, Injustice Watch compiled this explainer to answer them. Michelle Gilbert, the legal and policy director for the Law Center for Better Housing and a housing attorney with more than 30 years of experience, agreed to help. Our questions and her answers have been edited for clarity and brevity. Gilbert’s responses are for informational purposes only and should not be construed as legal advice.
IW: What are some common retaliatory practices landlords use against tenants who complain?
GILBERT: Filing an eviction, doing a really large rent increase, doing a notice of termination if you have a month-to-month lease, or if the lease is expiring and the landlord doesn’t renew, then that could be retaliatory.
Just decreasing services, like, “I want to get rid of you, so I’m fixing up this unit, but not your unit.” Or, “I said that I would be the one who mows the grass, but I’m not going to mow your grass because I’m just trying to get rid of you.” If they’re not providing a service, then it’s retaliation. If they’re just not being friendly to you anymore, it’s probably not really retaliation.
There is a pretty comprehensive list — there’s a city ordinance, there’s a county ordinance, and now there’s a state law. So really, everyone is protected against retaliation at this point. For it to be retaliation, as opposed to rudeness, the tenant does have to exercise some rights, whether it’s asking for repairs, writing a letter … some trigger event.
IW: What can tenants do if they feel retaliation?
GILBERT: They could talk with legal aid or a tenant organization. We can file a case against the landlord. The tenant can bring to the landlord’s attention that they’re acting in retaliation, and then the landlord might step back and say, “I don’t want to run the risk of a complaint or a counterclaim for retaliation. I’m going to just go ahead and renew the lease.”
Testimony is evidence. You can go into court and testify, but even judges — and this goes for juries — have an expectation that you have documents. Your text history. Whenever I’m talking to tenants, I really emphasize that you really need to put things in writing and date them.
Judges hear a lot of stories, and the bottom line is, if you’re making complaints, you want to do it in a way that can be proven. Again, like the text between landlords and tenants, that was a kind of evidence that didn’t exist when I started my career, where you could just pull stuff up on your phone and take screenshots. But that’s a good kind of evidence now. We can get that into court.
IW: Can a landlord enter an apartment without notice or permission?
GILBERT: It’s not a question of, can they access it or not? Yes, they can access the apartment. The question is, what do they need to do beforehand, and it depends on what’s going on. If it is an emergency, if the downstairs neighbor complains, “Hey, there’s a leak in my ceiling,” the landlord has the right to open the door to see whether you accidentally left your sink running, which is causing the leak.
In other situations, say, not an emergency kind of repair, but you know they need to check the smoke detectors or there’s some sort of inspection, or they’re trying to get a new mortgage and the lender requires that they inspect the units, the landlord can access the unit with 48 hours’ written notice. The landlord definitely has the right to access, but it also has to be reasonable. The ordinance does provide remedies for improper denial of access if the tenant won’t let the landlord in. And the converse of that, remedies for when the landlord is acting unreasonably. Then the tenant may obtain injunctive relief, so they can file a case, ask for an order that the landlord be prevented from doing that, or they can terminate the rental agreement and move out.
IW: What can tenants do if they believe they are being harassed?
GILBERT: You can terminate (the lease) if you get in and you think, “Oh, this is a great place” and then the landlord starts taking his morning coffee in your place at 7 a.m. every day. The ordinance lets you break the lease … even though this is not always the best outcome for everyone. The ordinance gives you an outcome that’s better than no outcome, you don’t have to stay there.
But it doesn’t really weigh properly: You have to find a place. You have to pay the money for credit checks. You have to look for a place. You have to pay the mover. So it doesn’t adequately reflect the cost, so the burden is on the tenant for that to be the only solution.
Michelle Gilbert’s tips to prepare for Zoom court
IW: What do tenants need to know before withholding rent?
GILBERT: It’s one of the reasons we created the legal information source chatbot [Rentervention.com]. It actually will help tenants create a letter. Because if they’re going to end up in court, [they] really need stuff in writing.
The other thing about withholding [rent] is to truly show that you’re withholding. You need to not just stop paying, but withhold a portion and then put it somewhere: “I’ve given you notice on March 10 that this window is cracked, and if you don’t fix it by the end of the month, then I’m going to withhold my rent.” You’re going to document that ahead of time. And then you are going to get a money order. Figure out a way that you can show you were withholding. You didn’t just stop paying rent.
IW: Do tenants need to pay back the withheld rent once the issue is addressed?
GILBERT: So there are three options — tenant remedies. The tenant can repair and deduct. “Here’s my letter asking you to fix the lock, and now, here’s my letter that says, if you don’t fix the lock within the next 14 days I am going to hire a locksmith and get it fixed and withhold that from my rent.” If the tenant does that, they don’t have to pay that part back because they’ve already spent it on the locks.
If it’s something that’s too expensive or something that’s building-wide and it hasn’t really diminished the value to them, but something they wanted to get fixed, then they’re going to pay the money back.
But, if they want to say, “I’ve been living here with no heat, so I’m withholding 12% or 25% or whatever percent because of the diminished value, then they don’t have to pay it back. And this is what the law provides. You want a judge to say that it diminished the value of the place by 15% so you don’t have to pay 15% for three months. The only way to do it is a full-on lawsuit. We discourage tenants from withholding 100% of their rent.
IW: What’s the appropriate way to use evidence of code violations as a defense in eviction court?
GILBERT: Get a lawyer. Use the resources that are being provided. If because of limited resources, you can’t get an attorney, there are some things to remember. Maybe try to go to court and watch other cases.
One of the most important things is make sure that you have paper copies of things. The court is not going to look stuff up on the computer. If you say to the judge, “There are city inspection reports, here’s the website,” judges are not going to do that. You have to print it out in advance, and you have to make copies because you have to give the other side a copy.
If the judge says you need to drop off courtesy copies, then you actually need to do that because the judge is going to review stuff ahead of time, and it goes both ways. The landlord has to give you copies of what they’re going to introduce, and you have to give the landlord copies. The court is not going to look at a video on your phone, and they’re not going to look at photos on your phone.
The more prepared you can be, the better. Lawyers like to think of things in terms of the chronological order in which they happened — so first I moved in, and then I noticed this problem, and then I put it in writing. You really want to think about it ahead of time, and go in with your notes: “I want to prove this point. I’m going to use this exhibit.”
So this expectation — that people are going to go in and be able to represent themselves even if they’ve watched another case — it’s why we want to try to provide attorneys to people.
IW: How can tenants request an eviction case be sealed?
GILBERT: The case is not going to get sealed if the tenant loses and there is a money judgment against them. Sometimes we work out deals that are the exception to that rule, but it’s generally true. The best way to get it sealed is to try to work out a deal where the landlord agrees for it to be sealed.
However, many cases don’t go to trial or the tenant doesn’t even get served. We talk to people all the time who didn’t know an eviction had been filed against them until it comes up on a credit report. Tenants like that are more likely to be able to get the file sealed.
The Illinois Supreme Court has forms that a tenant can use. They can use a resource like the Municipal Court Advice desk or Illinois Legal Aid Online or they can contact our office.
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