Illinois Implied Warranty of Habitability

Illinois Implied Warranty of Habitability Explained

Video by Attorney Kevin O'Flaherty
Article written by Illinois Attorney Kevin O'Flaherty
Updated on
August 6, 2019

In this article, we explain the implied warranty of habitability in Illinois leases.  We answer the questions, what is the implied warranty of habitability?, what is the definition of “habitability” for the implied warranty of habitability in Illinois, and what is the remedy for breach of the implied warranty of habitability in Illinois?  

For some foundational information, check out our previous article: Illinois Tenant Rights Explained.

What is the implied warranty of habitability?

The implied warranty of habitability is a legal doctrine created by Illinois case law.  In every written or oral lease, Illinois courts imply a warranty on the part of the landlord that the property will be kept in a condition that is habitable. A leased premises must be fit for its intended use and habitable for living throughout the term of the lease.

What is the definition of “habitability” for the implied warranty of habitability in Illinois?   

There is no hard and fast definition as to what constitutes a breach of the implied warranty of habitability.  Courts make this decision on a case-by-case basis, by weighing the following factors:

  • The nature of the problem with the property;
  • The problem’s effect on habitability;
  • The duration of time that the problem continued;
  • The age of the building;
  • The amount that the tenant pays in rent;
  • The area in which the premises are located;
  • Whether the tenant waived any defects with the property; and
  • Whether the problems with the property were caused by an unusual use by the tenant.

A property is not uninhabitable simply because of minor building code violations.  Rather the defect in the property must cause a reasonable person to consider the property uninhabitable in order for a breach to exist. The defect must be of such a substantial nature as to render the premises unsafe or unsanitary.  Aesthetic issues with the building do not give rise to a breach of the warranty.  

What is the remedy for breach of implied warranty of habitability in Illinois?

The remedy for breach of implied warrantability is contractual in nature, meaning that the courts typically try to place the tenant in the position he or she would have been in had the breach not occurred. As a baseline, tenants’ damages may be calculated by subtracting the fair rental value of the property with the defect that made it uninhabitable from fair rental value if the property had been habitable.  The fair rental value of the property if habitable is generally the amount of rent actually paid.  These amounts need not be established through expert testimony, because courts have held that the landlord and tenant themselves are competent to testify as to the condition of the property and these values.  In addition, tenants may be able to collect monetary compensation for other damages that were caused by the defect in the property.

Alternatively, tenants may repair the issue themselves and charge the cost of repair to the landlord, cease paying rent until the problem is resolved, or terminate the lease.

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