MR. PRESIDING JUSTICE STAMOS delivered the opinion of the court.
Plaintiff recovered a judgment in the amount of $355 and costs against defendants for past due rent. Defendants appeal, and contend that the court erred in striking their two affirmative defenses.
On October 26, 1967, the parties executed a lease for the rental of an apartment from November 1, 1967, through October 31, 1968, for $115 a month.
In the latter part of April, 1968, plaintiff initiated a forcible entry and detainer action against defendants for possession of the apartment and on May 10, 1968, the court entered judgment for possession but stayed the issuance of the writ of execution until May 25, 1968, on which day defendants vacated the premises.
Later in the year, plaintiff initiated another action, judgment by confession, as provided for in the lease and alleged that the sum of $470 was due and unpaid for rents, and that plaintiff was also entitled to $14.10 interest and $80.12 in attorneys fees for a total of $564.22. Defendants upon being served with summons to confirm the judgment responded and interposed two affirmative defenses.
Defendants' first affirmative defense was that the parties agreed to cancel the lease as evidenced by the written expression on the face of the lease which provided, "May 10, 1968, lease cancelled by agreement, Chgo. Mgmt. Co., by Moe M. Forman, its atty." Defendants alleged that plaintiff by his attorney promised to relinquish, waive, surrender and release all rights accruing to him under the lease, in return for defendants' promise to vacate the premises within 15 days and to forbear any contest of plaintiffs' action for possession. Defendants further allege that they performed in conformance with their part of the bargain.
Defendats' second affirmative defense was that the lease was invalid and unenforceable in light of sections 78-13 and 78-17 of the Municipal Code of the City of
Section 78-17 provides:
Defendants specifically alleged that the premises were in violation of sections 78-13.1 (Water closet), 78-13.6 (Maintenance of sanitary facilities), 78-13.8 (Heat to be furnished, 78-13.11 (Hot water to be furnished), 78-17.1 (Foundations, exterior walls and roofs — maintenance), 78-17.2 (Floors, interior walls and ceilings — maintenance), 78-17.3 (Windows, doors and hatchways — maintenance), 78-17.5 (Stairways and porches — maintenance), and 78-17.7 (Facilities, equipment, chimneys — maintenance).
Plaintiff moved to strike both affirmative defenses. The court granted plaintiff's motion and the cause proceeded to trial. Plaintiff was awarded judgment in the amount of $355 and costs, representing the rent due for the months of March, April and May, 1968, and the unpaid portion of the rent due from February. Defendants appeal from this judgment.
Defendants initially contend that their first affirmative defense was improperly stricken. However, plaintiff maintains that this first affirmative defense was properly stricken because: (1) an attorney retained to prosecute a single action for possession has no authority to compromise his client's rights as to past or future rent due under the leasing agreement and (2) there was no consideration for the extinguishment of the past due rent.
Therefore, we conclude that the court erred in striking defendants' first affirmative defense.
Defendants next contend that their second affirmative defense was improperly stricken. However, plaintiff maintains that this second affirmative defense was properly stricken because: (1) defendants were barred by the doctrine of laches, (2) defendants were precluded by a provision of the lease from asserting violations of the Municipal Code of the City of Chicago, and (3) such alleged violations would not relieve a tenant from the obligation to pay rent while the tenant remained in possession.
This provision cannot preclude the interposition of the doctrine of illegality of the lease. In Estate of Smythe v. Evans, 209 Ill. 376, 70 NE 906 (1904), at page 383, the court said:
Plaintiff's next point is that violations of the Housing Code will not relieve a tenant from the obligation to pay rent while the tenant remains in possession. This argument is based upon the doctrine of constructive eviction. However, the allegations of defendants' second
Section 78-11 of the Municipal Code of the City of Chicago declares the purposes of the Housing Code and Specific Findings of the Chicago City Council.
Violations of Chapter 78 render the party liable for penalties as provided for in section 78-20.
Therefore, the provisions of the Chicago Housing Code fall within that class of statutory law outlined in Ideal, supra.
Such violations of statutory law have been held to invalidate a lease like the one in Heineck v. Grosse, 99 Ill.App. 441 (1902). In that case, the court held that a lease executed in violation of an ordinance prohibiting the occupancy of part of a sidewalk for private purposes is invalid and could not be made the basis of an action for recovery of rent. At page 444, the court stated:
Similarly, in Western Cold Storage Co. v. Estate of Kaufman, 204 Ill.App. 477 (1917) the court held that a contract for storage charges upon decayed and unwholesome fruit and vegetables was unenforceable because its terms violated the city ordinances which prohibited the storing of condemned produce and provided a penalty therefor.
In Brown v. Southall Realty Co., 237 A.2d 834 (1968), the District of Columbia Court of Appeals held that where at the time of execution of the lease the premises were in violation of the Housing Code rendering habitation unsafe and unsanitary, the lease was void and the tenant was absolved of liability for rent. The District of Columbia Housing Code in that case provided:
We note that this ordinance is similar to sections 78-13 and 78-17 of the City of Chicago Municipal Code.
Therefore, the judgment and the order striking defendants' affirmative defenses are reversed and the cause remanded for proceedings not inconsistent with the views herein expressed.
Reversed and remanded.
DRUCKER and ENGLISH, JJ., concur.
(Declaration of policy.)
78-11. The purpose of this ordinance is to protect public health, safety, comfort, morals and welfare of the people of the city of Chicago, by enacting a housing code which establishes for all buildings used for housing:
(a) Minimum standards for cooking, heating and sanitary equipment necessary and expedient to promote health, suppress disease and protect safety of occupants of such buildings, and of neighboring properties;
(b) facilities for ventilation, light, space and means of egress which promote health and preserve safety;
(c) minimum standards of maintenance and responsibilities of owners, operators and occupants of dwellings for such maintenance which promote health and safety and aid in the enforcement of such standards;
(d) minimum standards essential to health, safety and welfare which are uniform in application to all dwellings whenever constructed so that with the resulting uniformity, simplicity and certainty, owners, operators and tenants are better able to determine the applicability of the law to them and the laws applicable to housing are administratively more convenient to enforce.
the city council finds that
(a) there exist in the city numerous dwellings which are substandard in one or more important features of structure, equipment, maintenance and occupancy;
(b) such conditions adversely affect public health and safety;
(c) such conditions contribute to the rapid deterioration and declining desirability of many residential areas of our city and tend to produce blight and slums;
(d) such conditions conflict with and destroy programs of this city under the Urban Community Conservation Act, as amended, and other acts of the State of Illinois designed to prevent slums and conserve residential areas;
(e) adequate protection of public health, safety, comfort and welfare and the maintenance of a workable program for prevention of slums and conservation of our city require the establishment and enforcement of minimum housing standards applicable to all dwelling units in this city;
(f) healthful and sanitary conditions in relation to space, use and arrangement of rooms generally prevail in single-family dwellings occupied by an owner and his family.