Constructive Eviction in Illinois

“Eviction” typically refers to a legal process in which a landlord kicks a tenant out of their rental unit. “Constructive eviction” flips this concept on its head—it refers to a landlord failing to keep a rental unit livable, effectively forcing a tenant to move out. When a tenant in Illinois has been constructively evicted, they’re no longer required to pay rent.

Illinois landlords are required to keep their rental units habitable

As in other states, Illinois tenants are protected by a concept known as the implied warranty of habitability.¹ This means that a landlord guarantees that their rental units will be suitable for tenants to live in. The warranty is “implied” because it applies to every single rental unit in the state, regardless of whether or not it’s mentioned in the lease.

When a rental unit is “unsafe or unsanitary”—and therefore not fit for human habitation—the warranty of habitability has been breached.² In Illinois, violations of major housing code laws are often considered breaches of the warranty. If a breach isn’t repaired in a reasonable time period, it can lead to a tenant being “constructively evicted.”³

A refusal to fix bad conditions can lead to a constructive eviction

If a tenant has repeatedly complained to a landlord about problems in a rental unit that are making it uninhabitable—and the landlord has refused to repair them—the conditions for a constructive eviction may be present. However, tenants need to understand that further steps need to occur for a true, legal “constructive eviction” to occur.

Most importantly, constructive eviction can only occur when a tenant has actually left the unit for good.⁴ It’s not enough to complain about a lack of repairs—the tenant must actually move out of their home as a result of terrible living conditions. If the tenant doesn’t move out, constructive eviction hasn’t occurred. (If a tenant wants to remain in their rental, they could consider other legal tactics to force a landlord to make repairs, such as repair and deduct or rent withholding.)

Not every problem with a rental unit qualifies for constructive eviction

Tenants should understand that a landlord must have acted quite badly in order for a constructive eviction to occur. Illinois courts have called constructive eviction “something of a serious and substantial character” done by a landlord.⁴ In practice, this means that a tenant should have requested a repair more than once, and the landlord repeatedly failed to do so. Technically, any breach in the warranty of habitability can lead to constructive eviction, as long as the landlord was informed numerous times of the condition and either ignored those complaints entirely or flat-out refused to act. However, one or even two complaints that go unanswered by a landlord may not qualify a tenant for constructive eviction—particularly if the issues with the rental unit are relatively minor.

Tenants don’t owe rent after being constructively evicted

When a court has found that a constructive eviction has occurred, a tenant is immediately excused from payment of any rent owed, dating from when the tenant first vacated the unit.⁵

Note that constructive eviction is, essentially, a defense used by a tenant being sued for unpaid rent by a landlord. A tenant does not go to a court and ask to be constructively evicted—they take the action themselves, without court permission. Only when (or if) a landlord sues the tenant for failing to pay rent does the tenant then claim “constructive eviction.”

If a court decides that a constructive eviction has occurred, the tenant’s lease is over, starting from the date the tenant left the unit. The lease is considered terminated, and the tenant is free to go on with their life without any obligation to pay rent. If the tenant already owed rent to the landlord before leaving the unit, however, that debt isn’t erased by a constructive eviction—only rent payments dating from after the unit was vacated.⁶

Chicago offers tenants additional protections

Chicago’s rental ordinance provides certain additional protections for tenants living in buildings with more than six units.⁷ While the law doesn’t address “constructive eviction” specifically, it does provide certain circumstances in which tenants may cancel a lease without court (or landlord) approval.

Specifically, if a tenant informs a landlord of an issue with their rental unit that’s putting their health or safety in imminent danger—or if a crucial service like water, heat, electricity, gas, or plumbing, isn’t working—and the landlord fails to fix it within 72 hours, the tenant may end the lease. The tenant should inform the landlord that the lease has been terminated. At that point, they have 30 days to vacate the unit, and they’re no longer responsible for any rent payments under their original lease.

Related articles

[1] Board of Directors of Bloomfield Club Recreation Ass'n v. Hoffman Group, Inc. Supreme Court of Illinois

[2] Glasoe v. Trinle, 107 Ill.2d 1 (1985)

[3] Jack Spring v. Emma Little, 50 Ill.2d 351 (1972)

[4] Dell'Armi Builders, Inc. v. Johnston, 526 N.E.2d 409 (Ill. App. Ct. 1988)

[5] American National Bank v. Sound City, USA, 67 Ill. App.3d 599

[6] City of Chicago v. American Nat. Bank, Appellate Court of Illinois, First District, Second Division

[7] Chicago Residential Landlords and Tenants Ordinance