Question 1: May I terminate my lease because of the disaster?

It depends. In Illinois, the common law rule is that absent any agreement between the parties, when land and buildings are destroyed, the tenant is not excused from the covenant to pay rent if anything remains to which the lease may attach. See Lewis v. The Real Estate Corp., 6 Ill.App.2d 240, 244, 127 N.E.2d 272, 276 (1st Dist. 1955). However, if the “destruction was total, so that there was nothing upon which the lease could operate, and its ground is that the destruction of the entire subject matter of the contract extinguishes the estate for years, and, the interest of the lessee being entirely destroyed, the agreement to pay rent is extinguished.” Humiston, Keeling & Co. v. Wheeler, 175 Ill. 514, 51 N.E. 893 (1898). For example, if a room or apartment or building is destroyed, then the lease may be terminated. However, the room or apartment or building leased must be destroyed before the lease can be terminated. In other words, mere damage or injury is not sufficient to terminate a lease.

However, Illinois law also recognizes the concept of “constructive eviction.” Constructive eviction is “something of a serious and substantial character done by the landlord with the intention of depriving the tenant of the beneficial enjoyment of the premises in accordance with the terms of the lease.” Dell’Armi Builders, Inc. v. Johnston, 172 Ill.App.3d 144, 148, 526 N.E.2d 409, 411 (1st Dist. 1988). That is, if a landlord breaches his covenant to repair and the leased premises become unfit for the purposes for which they were leased, and, as a result of the landlord’s breach, the tenant abandons the premises, the tenant is discharged of his or her liability to pay rent and otherwise comply with the terms of his or her lease. Id. However, the tenant must provide the landlord with a reasonable opportunity to remedy the problem before abandoning the premises. Id. at 149, 526 N.E.2d 412. Also, whether a constructive eviction has occurred depends on the specific facts of the case.

NOTE: Most leases have specific provisions that apply if the space is totally destroyed, and these provisions dictate the rights of the tenant and landlord.

Question 2: If the premises are totally uninhabitable because of the disaster, do I have to permanently move out even though I want to stay?

You must move out if the dwelling is totally destroyed, and it is unlawful to remain in the home. However, the landlord may agree to keep the lease in force while the dwelling is being repaired.

Most landlords should be willing to keep the lease in force and suspend all rent payments if the tenant does not stay in the dwelling while the landlord is trying to repair or restore the damage from the disaster. In major repair situations, the landlord usually wants the premises empty for efficient repair and avoidance of personal injury liability. If you would like to keep the lease in force and suspend all rent payments until the dwelling is repaired, you should discuss this with your landlord.

Question 3: If the dwelling is partially uninhabitable because of the disaster and if I don’t want to permanently move out, can my rent be partially abated (temporarily reduced)?

Absent an agreement with the landlord, probably not. In Illinois, only if the “destruction was total, so that there was nothing upon which the lease could operate” is the agreement to pay rent extinguished. See Humiston, Keeling & Co. v. Wheeler, 175 Ill. 514, 51 N.E. 893 (1898). Therefore, if the entire subject matter of the lease is not destroyed, the exception does not apply and the Illinois common law rule applies, that is, absent any agreement between the parties, when land and buildings are destroyed, the tenant is not excused from the covenant to pay rent. See Lewis v. The Real Estate Corp., 6 Ill.App.2d 240, 244, 127 N.E.2d 272, 276 (1st Dist. 1955).

NOTE: Most leases have specific provisions that apply if the dwelling is totally or partially destroyed, and these provisions dictate the rights of the tenant and landlord. In addition, whether the dwelling is totally or partially destroyed is a question of fact that must be decided on a case-by-case basis.

Question 4: May I withhold payment of rent because of the disaster or because the landlord failed to timely repair the dwelling after the disaster?

In general, no. Illinois law, specifically the Residential Tenants’ Right to Repair Act, provides a tenant with options to get certain repairs made. If, after the disaster, the lease has not been terminated, the tenant has the right to repair and deduct the amount of the repair (limited by the lesser of $500 or one-half of the monthly rent) from the payment of rent if the landlord does not timely repair. 765 ILCS 742/5. The tenant must have notified the landlord of the intention to make the repairs at the landlord’s expense. Only if the landlord fails to make the repair within 14 days after being notified (or more promptly as conditions require in the case of an emergency) may the tenant have the repair made at the landlord’s expense. 765 ILCS 742/5. The repair must be one which is part of the landlord’s responsibility under a residential lease agreement or required under a law, administrative rule, or local ordinance or regulation. 765 ILCS 742/5. In addition, the tenant may only deduct the repair from his or her rent (not to exceed the limits specified above) after the tenant has submitted to the landlord a paid bill from an appropriate tradesman or supplier unrelated to the tenant. 765 ILCS 742/5.

Note: There are several exceptions to the Residential Tenants’ Right to Repair Act. Specifically, the Residential Tenants’ Right to Repair Act does not apply to: (a) public housing as defined in Section 3(b) of the United States Housing Act of 1937, as amended from time to time, and any successor Act; (b) condominiums; (c) not-for-profit corporations organized for the purpose of residential cooperative housing; (d) tenancies other than residential tenancies; (e) owner-occupied rental property containing six or fewer dwelling units; and (f) any dwelling unit that is subject to the Mobile Home Landlord and Tenant Rights Act. 765 ILCS 742/10.

Question 5: Do I have to keep paying rent to my landlord while I am not living at my house/apartment?

It depends. If it has been determined that the destruction to the dwelling was total so that there is nothing upon which your lease can operate, the agreement to pay rent is extinguished. Humiston, Keeling & Co. v. Wheeler, 175 Ill. 514, 51 N.E. 893 (1898). However, if the destruction of the dwelling was not total and there is still something on which your lease can operate, you must continue paying rent to your landlord, even if you are not living there. In addition, local ordinances may apply (e.g., the Chicago Residential Landlord Tenant Ordinance or the Evanston Residential Landlord & Tenant Ordinance).

Question 6: What can happen and what should I do if I cannot pay the rent on my dwelling because of job or salary interruptions following the disaster? Will FEMA make payments until I can return to work?

No. FEMA is not authorized to make such payments. If you lost work because of the disaster, you may qualify for Disaster Unemployment Assistance (DUA). Contact the local office of your State's Employment Commission for information about DUA. The DUA program covers most people affected by a disaster, including many who do not normally qualify for regular unemployment aid. Also, be sure to speak to your lender or landlord and explain your circumstances. Special arrangements can often be made.

Question 7: How could I pay rent if I wanted to?

For residential leases, the landlord is probably local, and, therefore, probably had to evacuate just like the tenant. Clients should be advised not to mail payments until the USPS procedures for forwarding mail to evacuees are clarified, or at least until clients can verify that the landlord is receiving mail at the old address. A copy of the payment tendered should be kept for the tenant’s records.

Question 8: How do I contact my landlord?

There is no easy answer to this question. Presumably phone service will be restored quickly so that phone calls can be completed. The United States Postal Service will probably attempt to coordinate mail delivery by establishing central repositories for mail directed to evacuated zip codes.

Question 9: Can my landlord rent my home/apartment to someone else while I am gone?

The landlord must surrender peaceable possession of the leased premises to the tenant for the term of the lease. 735 ILCS 5/9-101. The landlord cannot impair peaceful possession unless there has been a default by the tenant and the lease has been terminated.

Question 10: My landlord told me to move out the next day because he wants the dwelling for his daughter who lost her house in the flood. He told me if I don’t move out, he’d change the locks. Do I have to move out?

No. The landlord must honor the lease unless the dwelling is totally destroyed or the lease contains an express provision allowing the landlord to terminate in event of a fire, flood or similar casualty. If the landlord wants you out in order to move someone else in, then the premises are obviously not “totally destroyed” and the landlord cannot terminate the lease.

If the landlord unlawfully locks you out, you should contact a lawyer. If you are low- income and live in the northern half of the state, you can call 1-800-531-7057 for information or possible representation by Prairie State Legal Services, and if you are low-income and live in the southern half of the state, you can call 1-877-342-7891 for information or possible representation by Land of Lincoln Legal Assistance Foundation.

Question 11: What should I do if I am served with an eviction lawsuit?

If you are served with an eviction lawsuit, you should carefully read the papers and determine the deadline for filing an answer or appearing in court. You should call a lawyer for representation or contact a legal services program for information.

Question 12: How can I recover my personal property from the leased premises?

FEMA and federal security officials are going to be in control of when and how evacuees are allowed to return to their homes. In the meantime, the best advice to give an evacuee is to try to contact the landlord and determine whether the landlord (i) knows anything about the condition of the property, and (ii) has been able to do anything to secure the property.

Question 13: May I recover damages against my landlord for injuries or property damage I suffered as a result of the disaster?

When the injury or property damage results from a natural disaster and not from the landlord’s negligence, the landlord is not liable for such injuries or property damage. However, the law does not prevent suits against the landlord for injuries or property damage resulting from the landlord’s negligence. The landlord can therefore be sued if the landlord’s negligence caused or contributed to the tenant’s injuries or damage from the disaster.

Question 14: I have suffered personal injuries or loss or damage to my personal belongings from the disaster. May I recover damages against my landlord or the previous homeowner if they knew about the possibility of flooding and failed to inform me?

If the seller made an affirmative misrepresentation concerning the possibility of flooding, the buyer may be able to sue the seller for fraud for property damages or personal injuries or for a violation of the Residential Real Property Disclosure Act for actual damages and court costs (and possibly attorney’s fees). 765 ILCS 77/1 et seq. The Illinois Residential Real Property Disclosure Act requires a “seller” of property to complete a statutory disclosure report regarding material defects in the property. With some exceptions, a “seller” is every person or entity who is an owner, beneficiary of a trust, contract purchaser or lessee of a ground lease, who has an interest in residential real property. 765 ILCS 77/5. However, the seller is not liable for any error, inaccuracy or omission of any information delivered pursuant to the Residential Real Property Disclosure Act if (i) the seller had no knowledge of the error, inaccuracy or omission; (ii) the error, inaccuracy or omission was based on a reasonable belief that a material defect or other matter not disclosed had been corrected; or (iii) the error, inaccuracy or omission was based on information provided by a public agency or by a licensed engineer, land surveyor, structural pest control operator, or by a contractor about matters within the scope of the contractor’s occupation and the seller had no knowledge about the error, inaccuracy or omission. 765 ILCS 77/25(a). In addition, the seller is not obligated to make any specific investigations or inquiry in an effort to complete the required disclosure statement. 765 ILCS 77/25(c).
If the landlord misrepresented the possibility of flooding, the tenant may be able to sue the landlord for property damages or personal injuries. If you knew, however, that the property could flood or did not rely on the affirmative misrepresentation, then you will not be able to recover damages. If the landlord said nothing about the possibility of flooding, then you will probably not be able to recover any damages. Generally, the mere failure to disclose a fact known by the landlord is not fraud. However, failure to disclose the possibility of flooding may, under certain circumstances, support a lawsuit against a landlord who knew of past flooding or knew of the possibility of flooding. Active concealment of known past flooding (for example, painting over flood water marks on walls) may also be the basis for tenant recovery. See 37 Am. Jur. 2d, Fraud and Deceit, 144-146.

Question 15: Can I recover damages against my landlord or the previous homeowner if they didn’t know about the possibility of flooding?

Probably not. As a general rule, the tenant or buyer cannot recover from the landlord or previous owner a loss or damage from flooding if the landlord or previous owner knew nothing about past flooding or the possibility of flooding, and did not tell the tenant or buyer that the property was not subject to flooding.

Question 16: All my personal belongings were destroyed when the roof fell in on the place I rent. What help can I get from my insurance company?

If you had renter’s insurance or homeowner’s contents insurance at the time of the flood, contact your insurance company. If your situation is desperate, make sure you describe your situation to the insurance company. If the insurance company agrees that there is coverage, you can ask for advance payment to cover a part of your loss.

Question 17: What should I do if I do not have insurance on my personal belongings?

If your losses are not covered by insurance, you may be able to get an Other than Housing Needs Grant from FEMA to replace necessary items of personal property. You may apply for these benefits by phone ((800) 621-3362 or TTY (800) 462-7585 for people with speech or hearing disabilities) or online at DisasterAssistance.gov. You may also wish to contact the Red Cross, which may be able to help you. If you are not in a federally designated disaster county but are in a state designated county, you can apply to the state for assistance.

Question 18: If my personal belongings are lost or damaged as a result of the flood or other disaster, may I recover them from my landlord under the landlord’s hazard insurance policy?

No. The landlord has no “insurable interest” in the tenant’s property, and, therefore, the landlord’s hazard insurance cannot (and does not) insure the tenant’s personal property. However, if the damage or loss of the tenant’s property is due in whole or in part to the landlord’s negligence, the tenant may be able to sue the landlord and the loss may be covered by the landlord’s liability insurance carrier.

Question 19: Is flood damage to my home covered under my insurance policy?

Your homeowner’s insurance policy (sometimes called a “casualty insurance policy,” “hazard insurance policy,” or “fire and extended coverage policy”) generally does not cover flood damage. The policy may cover water damage inside the home from direct or blowing rainfall, but it generally does not cover damage from surface water or rising water. Windstorm insurance normally will be limited to greater-than-normal wind conditions, such as from a hurricane. You should read your policy, talk to your insurance agent and consult an attorney if you have Question.

Question 20: Does my automobile insurance cover the damage to my car resulting from the disaster?

In general, disaster damage to an owner’s vehicle will be covered under the owner’s comprehensive auto coverage; however, the specific language in the insurance policy and any express policy exclusions will control.

Question 21: May I recover damages against my neighbor whose property damaged my property during the disaster?

The general rule is that a person is not liable for injuries or damages caused by a disaster or “Act of God” where there is no fault or negligence on the part of the owner whose property caused damage to others during the disaster. Therefore, your neighbor is liable only when he or she was negligent and such negligence was a cause of the damage. See 1 Am. Jur. 2d, Act of God, 11, 15; and 57 Am. Jur. 2d, Negligence, 181.

Question 22: What can I do with someone else’s property, which the disaster carried onto my land?

When personal property is carried away by flood, wind or explosion on the land of another, such personal property still belongs to the original owner and the original owner may enter and retrieve it. If the landowner refuses to let the owner of the personal property enter, or if the landowner appropriates the property for the landowner’s own use, the owner of the personal property can sue the landowner of the value of the property.

Question 23: May I sue the local, state, or federal government for damages caused by the disaster?

Under some circumstances, the government may have liability if its employees were negligent and caused the damages. However, under the doctrine of “sovereign immunity,” governmental authorities are generally immune from liability for the negligent acts of their agents and employees. The doctrine of sovereign immunity normally applies to “governmental functions” such as crime prevention, flood control, fire fighting, preservation of health, etc.

Question 24: Must I continue paying rent for my commercial lease space even thought it has been rendered totally or partially unusable by the disaster?

Most commercial leases have specific provisions that address situations when the property is totally or partially destroyed. These provisions dictate the rights of the tenant and landlord. Refer to your lease. If your lease is silent regarding casualty situations, you will have to pay rent unless you can prove that the doctrine of commercial frustration applies. Smith v. Roberts, 54 Ill.App.3d 910, 370 N.E.2d 271 (4th Dist. 1977). Although the doctrine of commercial frustration is not to be applied liberally, it is a viable defense in Illinois and will be applied when the defendant has satisfied two rigorous tests: (1) the frustrating event was not reasonably foreseeable; and (2) the value of counter performance by the lessee had been totally or nearly totally destroyed by the frustrating cause. Id. at 913, 370 N.E.2d 273. The doctrine of commercial frustration “rests on the view that where from the nature of the contract and the surrounding circumstances the parties when entering into the contract must have known that it could not be performed unless some particular condition or state of things would continue to exist, the parties must be deemed, when entering into the contract, to have made their bargain on the footing that such particular condition or state of things would continue to exist, and the contract therefore must be construed as subject to an implied condition that the parties shall be excused in case performance becomes impossible from such condition or state of things ceasing to exist.” Id. at 912-913, 370 N.E.2d 273, citing Leonard v. Auto Car Sales & Service Co. (1945), 392 Ill. 182, 187-188, 64 N.E.2d 477, 479-480, cert. denied, 327 U.S. 804, 66 S.Ct. 968, 90 L.Ed. 1029.

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