Mr. Justice Goldenhersh
delivered the opinion of the court:
Defendants Emma Little and Zeleta Price appeal from judgments of the circuit court of Cook County awarding plaintiffs Jack Spring, Inc. and Sutton & Peterson, Inc. respectively, possession of premises described as “3901 West Jackson 3rd floor,” and “a three room apartment on the second floor of premises located at 7804 Prairie,” both in Chicago. Because of the similarity of the issues involved we ordered the appeals consolidated for argument and opinion.
In the action against defendant Little, the complaint alleged that rent for the premises for a period of two months was due and owing, that there was due plaintiff from defendant for such rental the sum of $270, and that plaintiff claims possession of the property and $270 “as rent or damages.” It is not apparent from the record when or if the complaint was amended, but the judgment entered, and from which defendant Little appeals, is for possession of the premises only. In the action against defendant Price the complaint alleged that defendant unlawfully withheld possession of the premises and did not allege any failure to pay rent. The parties however, state in their briefs that plaintiff’s claim to possession was based on defendant Price’s failure to pay rent.
In her verified answer, as amended, defendant Little denied the allegations of the complaint and in four counts pleaded affirmative defenses. She alleged the existence of an “oral lease;” plaintiff Jack Spring, Inc.’s promises, and the breach thereof, to make certain repairs; many structural defects which are violations of enumerated sections of the Municipal Code of Chicago; plaintiff’s wilful neglect and intentional refusal to repair them, and that plaintiff, by reason of said refusal, was “in violation of an implied covenant of habitability;” the filing of a suit by the building department of the city of Chicago against the owner of record of the premises to enforce the building code; that she had sought other housing through private sources and governmental agencies and had been unable to find suitable housing; that the Cook County Department of Public Aid was withholding payments of rent for welfare recipients who occupied apartments in the building, that plaintiff cannot sue for possession of the premises occupied by such welfare recipients (see Ill. Rev. Stat. 1969, ch. 23, par. 11 — 23), and that to permit judgment to be entered against her for possession of the premises because she was employed and not a welfare recipient would violate her rights under the fourteenth amendment to the constitution of the United States.
She further alleged that the enforcement of plaintiff’s “illegal and unconstitutional” claim to possession will assist in perpetuation of slum housing, and will result in injury and detriment to defendant and other Negro citizens forced to occupy and reside in such slum housing.
In her verified answer, defendant Price denied the allegations of the complaint and, as affirmative defenses alleged the existence of a written lease, plaintiff’s promise, and the breach thereof, to make certain repairs, and repeated complaints to the appropriate agencies of the city of Chicago and their failure to institute action to enforce compliance by plaintiff with enumerated provisions of the Municipal Code of Chicago. She also alleged that enforcement of certain provisions of the lease would violate the public policy of Illinois and deprive her of certain fourteenth amendment rights.
The circuit court allowed plaintiffs’ motions to strike the answers and entered judgments for possession.
Upon entry of judgment and filing of notice of appeal each defendant moved in the circuit court for waiver of an appeal bond and supported the motion with an affidavit showing inability, by reason of poverty, to furnish bond. In each instance the motion was denied, and the court set the amount of the appeal bonds at $2,000 for defendant Little, and $1,200 for defendant Price.
The first issue presented arises from plaintiffs’ contention that the appeals must be dismissed because of defendants’ failure to file appeal bonds within 5 days as required by section 18 of “An Act in regard to forcible entry and detainer” (hereafter called Forcible Entry and Detainer Act; Ill. Rev. Stat. 1969, ch. 57, par. 19). Defendants contend that under the constitution and statutes of Illinois, and the rules of this court, in no situation except forcible entry and detainer is furnishing of bond a prerequisite to an appeal. They argue further that the mandatory conditions of the bond prescribed by the Forcible Entry and Detainer Act deny defendants the right, enjoyed by appellants in other types of cases, to have the conditions of the appeal bond fixed with reference to the character of the judgment as provided in our Rule 305(d). 43 Ill.2d R. 305.
Plaintiffs contend that this court, in a long line of cases, has sub silentio held section 18 to be constitutional. Amicus curiae Chicago Real Estate Board argues that equal protection does not require exact uniformity of procedure and cites authority approving shortened times for taking an appeal in certain types of cases. The parties have not cited, nor have we found, a case in which this court decided the question here presented, and obviously any alleged sub silentio holding in no way precludes our consideration of the issue.
Section 7 of article VI of the constitution of Illinois (1870) and section 6, article VI of the constitution of Illinois (1970) provide for an appeal, as a matter of right, from all final judgments of the circuit court. Having created the right of appeal, the statutes adopted and the rules promulgated in implementation of that right may not serve to discriminate against appellants by reason of the inability to furnish an appeal bond. (Griffin v. Illinois (1956), 351 U.S. 12, 100 L. Ed. 891, 76 S. Ct. 585; Boddie v. Connecticut (1971), 401 U.S. 371, 28 L. Ed. 2d 113, 91 S. Ct. 780; Mayer v. City of Chicago (1971), 404 U.S. 189, 30 L. Ed. 2d 372, 92 S. Ct. 410.) We hold, therefore, that insofar as section 18 of the Forcible Entry and Detainer Act requires the furnishing of bond as a prerequisite to prosecuting an appeal, it is violative of the fourteenth amendment to the constitution of the United States, of article II, section 2, and article VI, section 7, of the Illinois constitution of 1870, and article I, section 2, and article VI, section 6, of the Illinois constitution of 1970.
Defendants contend that the effect of the trial court’s orders denying their motions for waiver of appeal bond and requiring them to furnish bonds conditioned as prescribed by section 19 of the Forcible Entry and Detainer Act (Ill. Rev. Stat. 1969, ch. 57, par. 20) is to make “the tenant’s right to an appeal turn on his wealth.” They argue that if the statutes and rule (ch. 57, pars. 19 and 20; Supreme Court Rule 305) permit the requirement of such bonds “they are unconstitutional on their face,” and in any event are unconstitutional as applied in these cases.
We find it unnecessary to decide whether section 19 of the Forcible Entry and Detainer Act is unconstitutional. The Civil Practice Act (Ill. Rev. Stat. 1969, ch.
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Mr. Justice Goldenhersh
delivered the opinion of the court:
Defendants Emma Little and Zeleta Price appeal from judgments of the circuit court of Cook County awarding plaintiffs Jack Spring, Inc. and Sutton & Peterson, Inc. respectively, possession of premises described as “3901 West Jackson 3rd floor,” and “a three room apartment on the second floor of premises located at 7804 Prairie,” both in Chicago. Because of the similarity of the issues involved we ordered the appeals consolidated for argument and opinion.
In the action against defendant Little, the complaint alleged that rent for the premises for a period of two months was due and owing, that there was due plaintiff from defendant for such rental the sum of $270, and that plaintiff claims possession of the property and $270 “as rent or damages.” It is not apparent from the record when or if the complaint was amended, but the judgment entered, and from which defendant Little appeals, is for possession of the premises only. In the action against defendant Price the complaint alleged that defendant unlawfully withheld possession of the premises and did not allege any failure to pay rent. The parties however, state in their briefs that plaintiff’s claim to possession was based on defendant Price’s failure to pay rent.
In her verified answer, as amended, defendant Little denied the allegations of the complaint and in four counts pleaded affirmative defenses. She alleged the existence of an “oral lease;” plaintiff Jack Spring, Inc.’s promises, and the breach thereof, to make certain repairs; many structural defects which are violations of enumerated sections of the Municipal Code of Chicago; plaintiff’s wilful neglect and intentional refusal to repair them, and that plaintiff, by reason of said refusal, was “in violation of an implied covenant of habitability;” the filing of a suit by the building department of the city of Chicago against the owner of record of the premises to enforce the building code; that she had sought other housing through private sources and governmental agencies and had been unable to find suitable housing; that the Cook County Department of Public Aid was withholding payments of rent for welfare recipients who occupied apartments in the building, that plaintiff cannot sue for possession of the premises occupied by such welfare recipients (see Ill. Rev. Stat. 1969, ch. 23, par. 11 — 23), and that to permit judgment to be entered against her for possession of the premises because she was employed and not a welfare recipient would violate her rights under the fourteenth amendment to the constitution of the United States.
She further alleged that the enforcement of plaintiff’s “illegal and unconstitutional” claim to possession will assist in perpetuation of slum housing, and will result in injury and detriment to defendant and other Negro citizens forced to occupy and reside in such slum housing.
In her verified answer, defendant Price denied the allegations of the complaint and, as affirmative defenses alleged the existence of a written lease, plaintiff’s promise, and the breach thereof, to make certain repairs, and repeated complaints to the appropriate agencies of the city of Chicago and their failure to institute action to enforce compliance by plaintiff with enumerated provisions of the Municipal Code of Chicago. She also alleged that enforcement of certain provisions of the lease would violate the public policy of Illinois and deprive her of certain fourteenth amendment rights.
The circuit court allowed plaintiffs’ motions to strike the answers and entered judgments for possession.
Upon entry of judgment and filing of notice of appeal each defendant moved in the circuit court for waiver of an appeal bond and supported the motion with an affidavit showing inability, by reason of poverty, to furnish bond. In each instance the motion was denied, and the court set the amount of the appeal bonds at $2,000 for defendant Little, and $1,200 for defendant Price.
The first issue presented arises from plaintiffs’ contention that the appeals must be dismissed because of defendants’ failure to file appeal bonds within 5 days as required by section 18 of “An Act in regard to forcible entry and detainer” (hereafter called Forcible Entry and Detainer Act; Ill. Rev. Stat. 1969, ch. 57, par. 19). Defendants contend that under the constitution and statutes of Illinois, and the rules of this court, in no situation except forcible entry and detainer is furnishing of bond a prerequisite to an appeal. They argue further that the mandatory conditions of the bond prescribed by the Forcible Entry and Detainer Act deny defendants the right, enjoyed by appellants in other types of cases, to have the conditions of the appeal bond fixed with reference to the character of the judgment as provided in our Rule 305(d). 43 Ill.2d R. 305.
Plaintiffs contend that this court, in a long line of cases, has sub silentio held section 18 to be constitutional. Amicus curiae Chicago Real Estate Board argues that equal protection does not require exact uniformity of procedure and cites authority approving shortened times for taking an appeal in certain types of cases. The parties have not cited, nor have we found, a case in which this court decided the question here presented, and obviously any alleged sub silentio holding in no way precludes our consideration of the issue.
Section 7 of article VI of the constitution of Illinois (1870) and section 6, article VI of the constitution of Illinois (1970) provide for an appeal, as a matter of right, from all final judgments of the circuit court. Having created the right of appeal, the statutes adopted and the rules promulgated in implementation of that right may not serve to discriminate against appellants by reason of the inability to furnish an appeal bond. (Griffin v. Illinois (1956), 351 U.S. 12, 100 L. Ed. 891, 76 S. Ct. 585; Boddie v. Connecticut (1971), 401 U.S. 371, 28 L. Ed. 2d 113, 91 S. Ct. 780; Mayer v. City of Chicago (1971), 404 U.S. 189, 30 L. Ed. 2d 372, 92 S. Ct. 410.) We hold, therefore, that insofar as section 18 of the Forcible Entry and Detainer Act requires the furnishing of bond as a prerequisite to prosecuting an appeal, it is violative of the fourteenth amendment to the constitution of the United States, of article II, section 2, and article VI, section 7, of the Illinois constitution of 1870, and article I, section 2, and article VI, section 6, of the Illinois constitution of 1970.
Defendants contend that the effect of the trial court’s orders denying their motions for waiver of appeal bond and requiring them to furnish bonds conditioned as prescribed by section 19 of the Forcible Entry and Detainer Act (Ill. Rev. Stat. 1969, ch. 57, par. 20) is to make “the tenant’s right to an appeal turn on his wealth.” They argue that if the statutes and rule (ch. 57, pars. 19 and 20; Supreme Court Rule 305) permit the requirement of such bonds “they are unconstitutional on their face,” and in any event are unconstitutional as applied in these cases.
We find it unnecessary to decide whether section 19 of the Forcible Entry and Detainer Act is unconstitutional. The Civil Practice Act (Ill. Rev. Stat. 1969, ch. no) governs actions brought under the Forcible Entry and Detainer Act (Ill. Rev. Stat. 1969, ch. 57, par. 11), and our rules govern appeals in those actions. Our Rule 303(b) provides: “(1) Forcible Entry and Detainer. The time and method of appeal in forcible entry and detainer cases shall be as provided by statute (Ill. Rev. Stat., ch. 57, par. 19 et seq.), and paragraph (e) of this rule is inapplicable to those cases,” and in view of our holding section 18 invalid, to the extent that the rule purports to embody the provisions of that section, it is no longer operative. The stay of judgments pending appeal is governed by our Rule 305 and its provisions supersede those contained in section 19 of the Forcible Entry and Detainer Act. The right to an appeal is a matter separate and apart from the right to supersedeas during the pendency of the appeal, and in being required to furnish a bond as a condition to staying the judgment, an appellant in an action in Forcible Entry and Detainer is in no different situation than an appellant who seeks a stay of the judgment in any other type of appeal.
This court, upon application of the defendants, granted supersedeas conditioned, inter alia, upon the payment of rental installments as they became due. Amicus curiae Chicago Real Estate Board and plaintiffs argue that this type of “use and occupancy bonds” in many cases cannot protect the landlord’s interests, and the additional coverage provided by a bond of the type contemplated by section 19 of the Forcible Entry and Detainer Act is essential to protect the premises occupied, the landlord and other tenants. In our opinion this type of bond is within the contemplation of Rule 305, and the motions to dismiss the appeals are denied.
Defendants contend the trial court erred in striking their affirmative defenses, thus refusing to permit them to raise the plaintiffs’ prior breach of their obligation to maintain the premises as a condition to their right to possession. They argue that the obligation to pay “full rent” under a lease is interdependent with the landlord’s obligation to maintain and repair the premises, that summary eviction in face of the landlord’s failure to maintain the premises is contrary to principles of equity, and that summary eviction based upon an “unconscionable lease” is violative of defendants’ constitutional rights.
Plaintiffs contend the only issue in a forcible detainer action is the right to possession, and no equitable defenses can be recognized. Citing Rubens v. Hill, 213 Ill. 523, and Automobile Supply Co. v. The Scene-In-Action Corp., 340 Ill. 196, the Chicago Real Estate Board argues that “under well settled Illinois law no implied covenant to repair is imposed on a landlord, a covenant to pay rent is independent of a covenant to repair and a breach of a covenant to repair is not a germane defense in a forcible detainer suit based on non-payment of rent.” Plaintiffs and amicus curiae contend further that defendants seek in this action “far-reaching changes in long established landlord-tenant law; such request is appropriate for legislative rather than judicial consideration.”
The resolution of the issue presented requires an examination of section 5 of the Forcible Entry and Detainer Act.
Section 5 as enacted in 1874 provided that upon filing in a justice of the peace court or a court of record of a complaint in writing by the party entitled to possession of premises described in the complaint, stating he was entitled to possession and that a defendant named in the complaint was unlawfully withholding possession, summons was to issue. In 1935 (Laws of 1935, pp. 891, 892) the following provision was added: "No matters not germane to the distinctive purpose of the proceeding shall be introduced by joinder, counterclaim or otherwise.” In 1937 (Laws of 1937. p. 611) the following provision was added: "Provided, however, that a claim for rent may be joined in the complaint, and judgment obtained for the amount of rent found due.” In 1965 (Laws of 1965, p. 51) a further amendment deleted the references to justices of the peace and courts of record and provided for the filing of the complaint in the circuit court for the county where such premises are situated. At the time of the enactment of the 1935 amendment the sole remedy available under the Act, and therefore the “distinctive purpose” of any proceeding based thereon, was recovery of the premises. Upon enactment of the 1937 amendment with its provision for recovery of rent, the proceeding, to some extent, lost its distinctive purpose. To hold that a landlord, at his option, may expand the issues in a proceeding brought under the statute and the tenant may not is violative of common sense and accepted rules of statutory interpretation.
Section 2 of the Forcible Entry and Detainer Act provides that one entitled to the possession of lands may be restored thereto under this Act when, inter alia, "a peaceable entry is made and the possession unlawfully withheld.” In these cases there is no question that when defendants, in one instance under an oral agreement, and in the other under a written lease, entered upon possession of the premises, they were peaceable entries, and unless, as claimed by plaintiffs, rent is due and remains unpaid, possession is not "unlawfully withheld.” It is apparent, therefore, that even though the plaintiffs do not seek to recover rent in these actions, the question of whether rent is due and owing is not only germane, but in these cases where the right to possession is asserted solely by reason of nonpayment, is the crucial and decisive issue for determination.
We have stated above the respective contentions of the parties. With respect to plaintiffs’ first contention that the only issue in a forcible detainer action is the right to possession and no equitable defenses can be recognized, Rosewood Corp. v. Fisher, 46 Ill.2d 249, holds to the contrary.
It is established law that liability for rent continues so long as the tenant is in possession and equally well established that a tenant may bring an action against his landlord for breach of a covenant or may recoup for damages in an action brought to recover rent. Rubens v. Hill, 213 Ill. 523, 534; Selz v. Stafford, 284 Ill. 610, 617.
The salutary trend toward determination of the rights and liabilities of litigants in one, rather than multiple proceedings, is demonstrated by our opinions in Miller v. DeWitt, 37 Ill.2d 273, and Muhlbauer v. Kruzel, 39 Ill.2d 226. It would be paradoxical, indeed, to hold that if these were actions to recover sums owed for rent the defendants would be permitted to prove that damages suffered as the result of the plaintiffs’ breach of warranty equalled or exceeded the rent claimed to be due, and therefore, that no rent was owed, and at the same time hold that because the plaintiffs seek possession of the premises, to which admittedly, they are not entitled unless rent is due and unpaid after demand, the defendants are precluded from proving that because of the breach of warranty no rent is in fact owed. The argument that the landlords’ claim is for rent and the tenants’ for damages should not be permitted to obfuscate the sole and decisive issue, which simply stated is whether the tenants owe the landlords rent which is due and remains unpaid.
Insofar as defendants’ affirmative defenses alleged the breach of express covenants to repair, they were germane to the issue of whether the defendants were indebted to plaintiffs for rent and we find no impediment in our earlier opinions to the determination of the issue in one rather than multiple actions. We hold, therefore, that the trial court erred in striking these affirmative defenses.
We consider now whether the answers allege the existence of implied warranties or covenants and the breach thereof, and if so, whether the matters pleaded were “germane to the distinctive purpose of the proceeding.”
Plaintiffs and amicus curiae Chicago Real Estate Board
argue that there is no implied covenant to repair imposed on a landlord, and therefore, no implied warranty of habitability. The concept of an implied warranty of habitability is no stranger to the common law.
In Ingalls v. Hobbs (1892), 156 Mass. 348, at 349-350, 31 N.E. 286, at 286-287, the Supreme Judicial Court of Massachusetts said:
"It is well settled, both in this commonwealth and in England, that one who lets an unfurnished building to be occupied as a dwelling house does not impliedly agree that it is fit for habitation. Dutton v. Gerrish, 9 Cush. 89. Foster v. Peyser, 9 Cush. 242. Stevens v. Pierce, 151 Mass. 207. Sutton v. Temple, 12 M. & W. 52. Hart v. Windsor, 12 M. & W. 68. In the absence of fraud or a covenant, the purchaser of real estate, or the hirer of it for a term however short, takes it as it is, and determines for himself whether it will serve the purpose for which he wants it. He may, and often does, contemplate making extensive repairs upon it to adapt it to his wants. But there are good reasons why a different rule should apply to one who hires a furnished room or a furnished house for a few days or a few weeks or months. Its fitness for immediate use of a particular kind, as indicated by its appointments, is a far more important element entering into the contract than when there is a mere lease of real estate. One who lets for a short term a house provided with all furnishings and appointments for immediate residence may be supposed to contract in reference to a well understood purpose of the hirer to use it as a habitation. An important part of what the hirer pays for is the opportunity to enjoy it without delay, and without the expense of preparing it for use. It is very difficult, and often impossible, for one to determine on inspection whether the house and its appointments are fit for the use for which they are immediately wanted, and the doctrine caveat emptor, which is ordinarily applicable to a lessee of real estate, would often work injustice if applied to cases of this kind. It would be unreasonable to hold, under such circumstances, that the landlord does not impliedly agree that what he is letting is a house suitable for occupation in its condition at the time. This distinction betweeen furnished and unfurnished houses, in reference to the construction of contracts for letting them, when there are no express agreements about their condition, has long been recognized in Eng.land, where it is held that there is an implied contract that a furnished house let for a short time is in proper condition for immediate occupation as a dwelling. Smith v. Marrable, 11 M. & W. 5. Wilson v. Hatton, 2 Ex. D. 336. Manchester Bonded Warehouse Co. v. Carr, 5 C. P. D. 507. Sutton v. Temple, ubi supra. Hart v. Windsor, ubi supra. Bird v. Lord Greville, 1 C. & E., 317. Charsley v. Jones, 53 J. P. 280.”
Insofar as the affirmative defenses allege implied warranties of compliance with the Chicago building code, we find the situation presented in Schiro v. W. E. Gould & Co., 18 Ill.2d 538, to be analogous. In that case plaintiff had agreed to purchase certain real property on which defendants were to erect a house. Plaintiffs tendered the amount due on the purchase price and requested that the court order defendants to install a water and sewerage system in conformance with the Chicago building code. Defendants moved to strike the complaint, as amended, arguing that it failed to state a cause of action in that the contract contained no provision requiring that such a water and sewer system be installed. The trial court allowed the motion and dismissed the suit. In reversing the judgment this court said, at page 544-5:
“It is settled law that all contracts for the purchase and sale of realty are presumed to have been executed in the light of existing law, and with reference to the applicable legal principles. [Citation.] Thus, the law existing at the time and place of the making of the contract is deemed a part of the contract, as though expressly referred to or incorporated in it. [Citations.]
“The rationale for this rule is that the parties to the contract would have expressed that which the law implies ‘had they not supposed that it was unnecessary to speak of it because the law provided for it.’ [Citation.] Consequently, the courts, in construing the existing law as part of the express contract, are not reading into the contract provisions different from those expressed and intended by the parties, as defendants contend, but are. merely construing the contract in accordance with the intent of the parties.
* * *
“Applying this established law to the instant case, it is evident that the contract to purchase the land and building to be constructed by defendants included, as an integral part, the relevant provisions of the city code in existence at the time the contract was executed. The requirements of that code were, therefore, as much a part of the contract as if they had been enumerated by the parties.”
In Javins v. First National Realty Corp. (1970), 428 F.2d 1071, the Court of Appeals for the District of Columbia discussed numerous authorities including Ingalls and Schiro, reviewed the development of the now prevailing rule that there are implied warranties of quality and fitness for their intended use in connection with the sale and rental of chattels, commented upon the cases in which builders have been held liable for improper construction of new homes on the ground that they had breached an implied warranty of fitness, or in some instances, an implied warranty that all local building regulations had been complied with, and then at pages 1076-1078 said:
“Despite this trend in the sale of real estate, many courts have been unwilling to imply warranties of quality, specifically a warranty of habitability, into leases of apartments. Recent decisions have offered no convincing explanation for their refusal; rather they have relied without discussion upon the old common law rule that the lessor is not obligated to repair unless he covenants to do so in the written lease contract. However, the Supreme Courts of at least two states, in recent and well reasoned opinions, have held landlords to implied warranties of quality in housing leases. [Citations.] In our judgment, the old no-repair rule cannot coexist with the obligations imposed on the landlord by a typical modern housing code, and must be abandoned in favor of an implied warranty of habitability. In the District of Columbia, the standards of this warrranty are set out in the Housing Regulations.
“A. In our judgment the common law itself must recognize the landlord’s obligation to keep his premises in a habitable condition. This conclusion is compelled by three separate considerations. First, we believe that the old rule was based on certain factual assumptions which are no longer true; on its own terms, it can no longer be justified. Second, we believe that the consumer protection cases discussed above require that the old rule be abandoned in order to bring residential landlord-tenant law into harmony with the principles on which those cases rest. Third, we think that the nature of today’s urban housing market also dictates abandonment of the old rule.
“The common law rule absolving the lessor of all obligation to repair originated in the early Middle Ages. Such a rule was perhaps well suited to an agrarian economy; the land was more important than whatever small living structure was included in the leasehold, and the tenant farmer was fully capable of making repairs himself. These historical facts were the basis on which the common law constructed its rule; they also provided the necessary prerequisites for its application.
“Court decisions in the late 1800’s began to recognize that the factual assumptions of the common law were no longer accurate in some cases. For example, the common law, since it assumed that the land was the most important part of the leasehold, required a tenant to pay rent even if any'building on the land was destroyed. Faced with such a rule and the ludicrous results it produced, in 1863 the New York Court of Appeals declined to hold that an upper story tenant was obliged to continue paying rent after his apartment building burned down. The court simply pointed out that the urban tenant had no interest in the land, only in the attached building.” Citing and quoting from Ingalls the Court of Appeals
then went on to say at pages 1078-1079:
“These as well as other similar cases demonstrate that some courts began some time ago to question the common law’s assumptions that the land was the most important feature of a leasehold and that the tenant could feasibly make any necessary repairs himself. Where those assumptions no longer reflect contemporary housing patterns, the courts have created exceptions to the general rule that landlords have no duty to keep their premises in repair.
“It is overdue for courts to admit that these assumptions are no longer true with regard to all urban housing. Today’s urban tenants, the vast majority of whom live in multiple dwelling houses, are interested, not in the land, but solely in ‘a house suitable for occupation.’ Furthermore, today’s city dweller usually has a single, specialized skill unrelated to maintenance work; he is unable to make repairs like the ‘jack-of-all-trades’ farmer who was the common law’s model of the lessee. Further, unlike his agrarian predecessor who often remained on one piece of land for his entire life, urban tenants today are more mobile than ever before. A tenant’s tenure in a specific apartment will often not be sufficient to justify efforts at repairs. In addition, the increasing complexity of today’s dwellings renders them much more difficult to repair than the structures of earlier times. In a multiple dwelling repair may require access to equipment and areas in the control of the landlord. Low and middle income tenants, even if they were interested in making repairs, would be unable to obtain any financing for major repairs since they have no long-term interest in the property.
“Our approach to the common law of landlord and tenant ought to be aided by principles derived from the consumer protection cases referred to above. In a lease contract, a tenant seeks to purchase from his landlord shelter for a specified period of time. The landlord sells housing as a commercial businessman and has much greater opportunity, incentive and capacity to inspect and maintain the condition of his building. Moreover, the tenant must rely upon the skill and bona fides of his landlord at least as much as a car buyer must rely upon the car manufacturer. In dealing with major problems, such as heating, plumbing, electrical or structural defects, the tenant’s position corresponds precisely with ‘the ordinary consumer who cannot be expected to have the knowledge or capacity or even the opportunity to make adequate inspection of mechanical instrumentalities, like automobiles, and to decide for himself whether they are reasonably fit for the designed purpose.’ [Citations.]
“Since a lease contract specifies a particular period of time during which the tenant has a right to use his apartment for shelter, he may legitimately expect that the apartment will be fit for habitation for the time period for which it is rented. We point out that in the present cases there is no allegation that appellants’ apartments were in poor condition or in violation of the housing code at the commencement of the leases. Since the lessees continue to pay the same rent, they were entitled to expect that the landlord would continue to keep the premises in their beginning condition during the lease term. It is precisely such expectations that the law now recognizes as deserving of formal, legal protection.”
We find the reasoning in Javins persuasive and we hold that included in the contracts, both oral and written, governing the tenancies of the defendants in the multiple unit dwellings occupied by them, is an implied warranty of habitability which is fulfilled by substantial compliance with the pertinent provisions of the Chicago building code. We hold further that the defendants’ answers sufficiently plead the existence and breach of the implied warranties. The issues raised were germane to the decisive question of whether the defendants were indebted to plaintiffs for rent and the trial court erred in striking the affirmative defenses alleging breach of the implied warranty.
Finally, we consider the affirmative defense of defendant Price with respect to the paragraph in her lease which provides:
“CONDITION OF PREMISES — Lessee has examined said premises and appurtenances prior to and as a condition precedent to his acceptance and the execution hereof, and is satisfied with the physical condition thereof, and his taking possession shall be conclusive evidence of his receipt thereof in good order and repair, except as otherwise specified hereon, and agrees and admits that no representation as to condition or repair has been made by Lessor or his agent, which is not herein expressed, or endorsed hereon; and that no promise to decorate, alter, repair or improve, either before or at the execution hereof, not contained herein, has been made by Lessor or his agent.”
Insofar as her affirmative defense presented the issue of whether the presence of this provision in the lease precluded the existence of an implied warranty of habitability and proof of the breach of the alleged express agreements to repair the premises, it was germane to the issue of whether rent was due and owing and the court erred in striking it.
We have considered the arguments of plaintiffs and the Chicago Real Estate Board that any change in the long established rules of landlord and tenant law should be effected by legislative action. Admittedly, the rules for which they contend are the product of judicial decision, and we find particularly apposite the statement of Mr. Justice Cardozo that “A rule which in its origin was the creation of the courts themselves, and was supposed in the making to express the mores of the day, may be abrogated by courts when the mores have so changed that perpetuation of the rule would do violence to the social conscience. * * * This is not usurpation. It is not even innovation. It is the reservation for ourselves of the same power of creation that built up the common law through its exercise by the judges of the past.” (The Growth of the Law, chap. IV, p. 136.) In that ambience, in recent years, this court decided Nudd v. Matsoukas, 7 Ill.2d 608, People ex rel. Noren v. Dempsey, 10 Ill.2d 288, Molitor v. Kaneland Community Unit District, 18 Ill.2d 11, and Suvada v. White Motor Co., 32 Ill.2d 612.
At this stage, as did the Supreme Court in Jones v. Alfred H. Mayer Co. (1968), 392 U.S. 409, 20 L. Ed. 2d 1189, 88 S. Ct. 2186, we “make clear precisely what this case does not involve.” It does not involve nor purport to adjudicate issues which might arise in an action based on notice given in accordance with any section of the Landlord and Tenant Act (Ill. Rev. Stat. 1969, ch. 80) except section 8, which is here specifically involved. It does not alter the long established rule that liability for rent continues so long as the tenant retains possession of the premises (Automobile Supply Co. v. The Scene-In-Action Corp., 340 Ill. 196), and is applicable only to the factual situations here presented, the occupancy of multiple dwelling units. •
For the reasons set forth the judgments of the circuit court of Cook County are reversed and the causes remanded for proceedings not inconsistent with this opinion.
Reversed and remanded.