JMB Props. Urban Co. v. Paolucci

237 Ill. App. 3d 563, 178 Ill. Dec. 444, 604 N.E.2d 967 (1992)



 Constructive eviction cannot exist where the tenant does not surrender the property. Following a constructive eviction, the tenant is not required to vacate the premises immediately, but is entitled to a reasonable time to do so. The tenant bears the burden of proving that he did abandon the premises within a reasonable time after the untenable condition occurred. If the tenant fails to vacate within a reasonable time, the tenant is considered to have waived the landlord's breach of covenant. The reasonableness of a delay is generally a question of fact.


Defendant opened a jewelry store in a mall. When an audio and video store  moved in next door to the defendant and they shared a common wall, defendant began complaining to then-landlord about the high level of noise emanating from the audio and video store. Despite such complains, the defendant still continued to occupy the premises. The original landlord later assigned its lease to plaintiff company and hired plaintiff management company to negotiate new leases and collect rent from mall tenants. Defendant entered into a new six-year lease with plaintiff, which required that defendant operate the jewelry store during the entire term of the lease and refrain from operating any similar business within a five-mile radius of the mall. Defendant failed to pay rent and vacated the premises a month after its default in payment. That was two years prior to the end of the lease, after which, the defendant moved to a new location within a five-mile radius of the mall. Plaintiffs  filed actions against defendant seeking recovery of past-due rent and penalties for violating the lease. Defendant filed a counterclaim seeking declaratory relief, alleging that he had been constructively evicted as a result of plaintiff's failure to control the excessive noise generated by the neighboring tenant. Defendant also filed an affirmative defense alleging that plaintiff company failed to mitigate its damages. The trial court ruled in favor of plaintiff. On appeal, the court reversed the judgment and remanded the cause for a determination of the amount of damages to which the landlord was entitled.


Did the trial court err in finding that the noise emanating from the neighboring store was sufficient to amount to defendant's constructive eviction?




According to the Court, a constructive eviction results from a landlord's failure to keep the premises in a tenantable condition. In this case, the Court held that the tenant waived any claim of constructive eviction by remaining on the premises for an unreasonable length of time after the rise of the untenable condition. Thus, the tenant breached the lease by abandoning the premises, failing to pay rent, and moving to another location within five miles of the premises as prohibited by the terms of the lease. In reaching its conclusion, the court noted that the tenant tolerated the alleged untenable condition for more than four years and signed a new lease despite the alleged noise condition. Further, by re-letting the premises to the first available tenant within seven months of the tenant's departure and at a rate of one-half the amount of rent paid by the tenant, the landlord made reasonable efforts to mitigate damages.

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