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Michael Bervan v. Marquette National Bank & Trust No. 14662 and Gee Toy
Date: 08-11-2009
Case Number: 1-08-3296
Judge: Cunningham
Court: Appellate Court of Illinois on appeal from the Circuit Court of Cook County
Plaintiff's Attorney:
Defendant's Attorney:
Description:
Following a bench trial, judgment was entered in favor of defendants Gee Toy and Marquette National Bank Trust #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, plaintiff's 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 plaintiff's security deposit
($1,225) and the remaining balance of April's rent. Landlord failed to return plaintiff's 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 owneroccupied 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
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, plaintiff's 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 plaintiff's security deposit
($1,225) and the remaining balance of April's rent. Landlord failed to return plaintiff's 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 owneroccupied 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
Outcome:
Accordingly, we affirm the judgment of the circuit court of Cook County. Affirmed.
Plaintiff's Experts:
Defendant's Experts:
Comments:
About This Case
What was the outcome of Michael Bervan v. Marquette National Bank & Trust No. 146...?
The outcome was: Accordingly, we affirm the judgment of the circuit court of Cook County. Affirmed.
Which court heard Michael Bervan v. Marquette National Bank & Trust No. 146...?
This case was heard in Appellate Court of Illinois on appeal from the Circuit Court of Cook County, IL. The presiding judge was Cunningham.
When was Michael Bervan v. Marquette National Bank & Trust No. 146... decided?
This case was decided on August 11, 2009.