Berven v. MARQUETTE NAT. BANK & TRUST

915 N.E.2d 84, 394 Ill. App. 3d 22
CourtAppellate Court of Illinois
DecidedAugust 11, 2009
Docket1-08-3296
StatusPublished

This text of 915 N.E.2d 84 (Berven v. MARQUETTE NAT. BANK & TRUST) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Berven v. MARQUETTE NAT. BANK & TRUST, 915 N.E.2d 84, 394 Ill. App. 3d 22 (Ill. Ct. App. 2009).

Opinion

JUSTICE CUNNINGHAM

delivered the opinion of the court:

Following a bench trial, judgment was entered in favor of defendants Gee Toy and Marquette National Bank Trust No. 14662, dated December 2, 1998 (Landlord), in plaintiff, tenant Michael Berven’s action for breach of contract and various violations of the Residential Landlord and Tenant Ordinance of the City of Chicago (RLTO) (Chicago Municipal Code §5 — 12—010 et seq.). Plaintiff appeals from the trial court’s determination that his rental unit was located on property which was “owner-occupied” and therefore not subject to the RLTO. We affirm.

BACKGROUND

On February 22, 2008, plaintiff entered into a written lease agreement with Gee Toy to rent “315 S. Ashland, Coach House North (1NRH), Chicago,” commencing on April 15, 2008, and terminating on June 15, 2010. At signing, plaintiff gave Gee a check in the amount of $2,450 for the security deposit and first month’s rent. On April 25, 2008, plaintiffs counsel sent Landlord a letter terminating the lease, effective April 26, 2008, for Landlord’s failure to provide with the lease certain disclosures required by the RLTO. The letter also requested remittance of plaintiffs security deposit ($1,225) and the remaining balance of April’s rent. Landlord failed to return plaintiffs security deposit or prepaid rent within 45 days and provided no written explanation for withholding the security deposit.

On July 17, 2008, plaintiff filed a small claims complaint alleging, inter alia, that Landlord violated section 5 — 12—170 of the RLTO (Chicago Municipal Code §5 — 12—170 (amended October 1, 2003)) by failing to provide an RLTO summary with the lease. 1

At trial, May Toy, Gee Toy’s sister, testified that she is the beneficiary of Trust No. 14662, dated December 2, 1998, and that she lives in the front building located at 315 South Ashland with Gee, who manages the property. May testified that the coach house is a separate building that shares the same street address as the main building, i.e., 315 South Ashland. Plaintiff testified that there were three or four apartments in the main house and added that he never moved into the coach house because there had been a verbal agreement that the apartment would be cleaned prior to April 15 and it was never cleaned.

After plaintiff rested his case, May, appearing pro se on behalf of Landlord, made a motion for a directed finding based on section 5 — 12—020(a) of the RLTO (Chicago Municipal Code §5 — 12—020(a) (amended September 4, 2003)) (the “owner-occupied” exclusion), which provides that “[d]welling units in owner-occupied buildings containing six units or less” shall not be governed by the RLTO. May argued that the RLTO did not apply because the 315 South Ashland property, including the coach house, was owner-occupied and contained six units or less. May explained that even though the coach house had two rental units, it was appurtenant to the main building and she and Gee used it as a parking facility and for storage. Plaintiff responded that the coach house, which he rented, was a separate building from the main house located at 315 South Ashland, and the coach house was not owner-occupied.

The trial court granted Landlord’s motion for a directed finding, stating: “We have one property owner at 315 South Ashland. We have one PIN number. We have the Assessor determining that to be one property. *** I think this is the type of case that the City Council decided should be exempted from the RLTO ***.” This appeal followed.

ANALYSIS

On appeal, the sole issue is whether a coach house appurtenant to an owner-occupied building is “owner-occupied” within the meaning of the section 5 — 12—020(a) exclusion. 2

Initially, we observe that only three cases have interpreted the “owner-occupied” exclusion set forth in section 5 — 12—020(a) of the RLTO: Detrana v. Such, 368 Ill. App. 3d 861, 859 N.E.2d 142 (2006), Allen v. Lin, 356 Ill. App. 3d 405, 826 N.E.2d 1064 (2005), and Meyer v. Cohen, 260 Ill. App. 3d 351, 632 N.E.2d 22 (1993). In Detrana, the plaintiff argued that in order for the owner-occupied exclusion to apply, the owner must exercise control over the property. Detrana, 368 Ill. App. 3d at 866, 859 N.E.2d at 147. This court rejected the plaintiff’s argument. Detrana, 368 Ill. App. 3d at 868-70, 859 N.E.2d at 148-50. The issue in Allen was whether the owner-occupied exclusion applied to separate townhouses in the same building, i.e., “under one roof.” Allen, 356 Ill. App. 3d at 411, 826 N.E.2d at 1068. Allen held that the townhouses, which had separate addresses, were separate buildings, and on this basis concluded that the section 5 — 12—020(a) exclusion did not apply. Allen, 356 Ill. App. 3d at 413, 826 N.E.2d at 1070. In Meyer, the question was whether the owner-occupied exclusion applied to an apartment complex containing seven units available for inhabitance — one more than the six-unit limit — where only three were occupied at the time of the lease. Meyer, 260 Ill. App. 3d at 355, 632 N.E.2d at 25. The Meyer court held that the exclusion did not apply, explaining that the actual occupancy of the rental units had no bearing on whether each was a “dwelling unit” as defined in section 5 — 12—030(a) of the RLTO. Meyer, 260 Ill. App. 3d at 358, 632 N.E.2d at 27. Accordingly, whether the city council intended to exclude an owner of a coach house with two rental units who lives in the front building from application of the RLTO is an issue of first impression in Illinois.

Plaintiff contends that the coach house is not an “owner-occupied” building for purposes of applying the owner-occupied exclusion because it is a separate building in which Landlord did not live at any relevant time. Landlord responds that the coach house is part of its “dwelling unit” as defined under section 5 — 12—030(a) and thus exempt from the RLTO pursuant to the owner-occupied exclusion.

When interpreting an ordinance, our primary goal is to ascertain and give effect to the intent of the legislative body, and the language of the ordinance is the most reliable indicator of that intent. Willis v. Naico Real Estate Property & Management Corp., 379 Ill. App. 3d 486, 490, 884 N.E.2d 752, 755 (2008), citing Barnett v. Zion Park District, 171 Ill. 2d 378, 388, 665 N.E.2d 808, 813 (1996). “Where the language is clear and unambiguous, a reviewing court may not depart from its plain meaning by reading into it exceptions that the legislature did not express.” Willis, 379 Ill. App. 3d at 490, 884 N.E.2d at 755, citing Kraft, Inc. v. Edgar, 138 Ill. 2d 178, 189, 561 N.E.2d 656, 661 (1990). We review the construction and legal effect of the RLTO de novo. Lawrence v. Regent Realty Group, Inc., 197 Ill. 2d 1, 9, 754 N.E.2d 334, 339 (2001).

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Related

Willis v. Naico Real Estate Property & Management Corp.
884 N.E.2d 752 (Appellate Court of Illinois, 2008)
Detrana v. Such
859 N.E.2d 142 (Appellate Court of Illinois, 2006)
Meyer v. Cohen
632 N.E.2d 22 (Appellate Court of Illinois, 1993)
Lawrence v. Regent Realty Group, Inc.
754 N.E.2d 334 (Illinois Supreme Court, 2001)
Allen v. Lin
826 N.E.2d 1064 (Appellate Court of Illinois, 2005)
Barnett v. Zion Park District
665 N.E.2d 808 (Illinois Supreme Court, 1996)
Kraft, Inc. v. Edgar
561 N.E.2d 656 (Illinois Supreme Court, 1990)

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Bluebook (online)
915 N.E.2d 84, 394 Ill. App. 3d 22, Counsel Stack Legal Research, https://law.counselstack.com/opinion/berven-v-marquette-nat-bank-trust-illappct-2009.