When we last left off on Friday, it was 1972. The Chicago Freedom Movement and the Tenant Movement had marched, rioted and fought their way into the spotlight and were starting to get attention. Judge Skelly Wright of the US Court of Appeals for the District of Columbia had ruled that apartments were to be governed by the principles of modern contract law rather than the centuries old tenets of English property law. The National Conference of Commissioners of Uniform State Laws (NCCUSL) had delivered a draft of a landlord-tenant act that Illinois could have used as a starting point for creating its own body of laws, or even adopted outright without alteration. The sample act was called the Uniform Residential Landlord-Tenant Act, or URLTA for short.
The future of tenants' rights in Chicago was laid firmly at the feet of the Illinois General Assembly. This was, in retrospect, a very bad move.
If a psychologist were to sit the state of Illinois on her couch for a nice long chat, she might come away with the impression that it suffered from a split personality. The northeast corner of the state is dominated by a liberal-leaning population and contains all but three of the 10 largest cities, including the political powerhouse of Chicago. 200 miles away in the center of the state you'll find the capital city of Springfield, surrounded by farmland and traditionally right-wing voters. The prickly relationship between Chicago and Springfield is severe enough that Chicago residents have called for secession from Illinois on several occasions. (Fun fact: If Chicago were to secede at this time, it would replace New Mexico as the 36th largest state in terms of population.)
In 1970, the state of Illinois had created a new state constitution. One of the new laws from this constitution allowed cities with populations of 25,000 residents or more to create their own laws without obtaining prior permission from the state. (This is called “Home Rule” in legal-speak.) While this did not lead to secession, it did have a lasting impact on how tenants rights developed in the 16 years that followed. Over the next five years, the left-wing cities of northern Illinois, still reeling from the impact of the civil rights movement, sat by and progressively more frustrated with Springfield's inability to make any headway on the landlord-tenant disaster.
We'll Make our Own Laws! With Lawyers and Judges!
In the United States there are three different ways for laws to come into existence. “Statutes” are created by Congress and state legislatures. “Regulations” are created by executive departments, such as the Department of the Treasury or the Department of Housing and Urban Development, to help make those statutes possible. “Common law” is created based on the rulings of judges in court cases around the country.
By the time URLTA became an option for the Illinois state legislature, some of the big issues it addressed had already been covered by Illinois common law and statutes. URLTA required landlords to allow subletting, but the case of “Wohl v. Yelen” in 1959 had already established that in Illinois. URLTA made retaliatory evictions illegal, but in Illinois a primitive set of laws against retaliatory eviction had already been on the books since 1963.
The biggest of the redundant issues was whether or not a landlord was liable for the condition of an apartment when a tenant moved in. (Or, in lawyer speak, whether or not the landlord provided a “warranty of habitability” by default with every lease.)
Last Friday we spent quite a bit of time talking about the 1970 ruling on “Javins vs First National Realty,” which stated that yes, the warranty of habitability was implicit in every apartment lease. But that was in Washington DC. For most states, they were fine with accepting this common law ruling until URLTA rolled around and doubled down via statute. Illinois, however, had a lawsuit pop up in 1972 that made the warrant of habitability clause in URLTA also redundant.
Emma Little had moved into a Chicago apartment in 1961. She was a welfare recipient, and the Cook County Department of Public Aid was responsible for paying her rent. Come 1967 the apartment was having some issues. The windowsills were rotted, the power was flaky, and she had no window screens. The building had some structural problems as well. Ms. Little renewed her lease on the condition that her landlord should make the repairs. The landlord didn't come through, so County decided to withhold their rent payment until everything was fixed.
The landlord proceeded to file an eviction case against her. She presented all of the defects as her defense, but was evicted regardless. With the help of attorney Gilbert Cornfield, who had long been fighting for Chicago tenants in similar situations, she appealed twice to the Illinois Supreme Court to get the eviction overturned. The judges' ruling was one that has lasting effects on Illinois landlord-tenant law through the present day.
Every state now has a law saying that yes, the landlord is responsible for the condition of an apartment when the tenant moves in, and yes, the landlord is responsible for making sure the apartment continues to follow city health codes while the tenant is living there. However, 49 states look to statutes for their version of this law. Only in Illinois do we look to common law, a testament to “Jack Spring, Inc. v. Little” and Emma Little's perseverence.
The decision in the Little case was handed down in January of 1972. The first legal aid office in Chicago opened in the summer of 1972. Suddenly Chicago housing court was getting bogged down by tenants who had legal representation for the first time and could protest their eviction cases with proof that their apartments were unhealthy, unsanitary, or worse.
URLTA reached the Illinois legislature in the same year. By then, several of the main protections it granted to tenants were already in place thanks to common law rulings. However, URLTA went much further. The document was very strongly written in favor of tenants and it encountered immediate resistance from landlords and from Realtors, who depended heavily on the continued business from landlords for their survival.
Who Killed URLTA?
This is all about to get a little alphabet soupy, but bear with me. The Chicago Real Estate Board (CREB) has been mentioned before now in this series, mostly in the context of promoting segregation. It's time to talk a little more about the history of Realtors and how they figure into the rights of tenants in Chicago.
CREB was founded in 1883, in response to the efforts to rebuild Chicago after the Great Fire. It survives today in the form of the Chicago Association of Realtors (CAR), a name adopted by the group in 1992. The idea of a centralized industry group for real estate agents was popular, and their success led to copycat groups popping up nationwide. In response, CREB created the National Association of Real Estate Exchanges (NAREE) in 1907. NAREE would in time become today's National Association of Realtors (NAR). NAR coined and trademarked the word “Realtor” to describe a paying member of their organization. Both NAR and CAR have always been based in Chicago, meaning Chicago and Illinois have always gotten a little more attention from them than the rest of the country.
I should note here that the National Association of Real Estate Exchanges of the 1970s should not be confused with the National Association of Real Estate Brokers (NAREB), a group that still exists today. The latter group was founded in 1947 by a group of black real estate agents. At the time, Realtors did not serve black home buyers fairly and did not allow black agents to join their ranks. They would not and could not call themselves “Realtors,” so the members of the National Association of Real Estate Brokers called themselves “Realtists.” The first black Realtors didn't appear in the Chicago area until the early 1960s.
For the sake of clarity and to make clear the differences between NAR's policies of the 1970s and today, I will refer to the old National Association of Real Estate Exchanges as NAREE for the rest of this article.
The websites of CAR and NAR today talk strongly about their role as ethics watchdogs for the residential real estate industry. Pretty much anyone who buys a home or sells a home in the US these days uses the services of a Realtor to do so. Their current marketing pitch is one of equal opportunity for all and how everyone can and should buy real estate. However, it's important to remember that the Realtor associations in this country have always been lobbyist groups – some of the strongest in the country. They work towards legislation that encourages the buying and selling of real estate. As such, their interests have traditionally lay with those of the wealthy, i.e., landlords rather than tenants.
In 1972 NAREE strongly opposed URLTA as something that would bring landlord investment in Illinois to a grinding halt. They told the Chicago Daily Tribune that it would “impose unreasonable and unnecessary burdens on landlords and those representing them.” They lobbied heavily against the passage of URLTA. By December of 1972 they were using a tactic of distracting the legislature by creating an alternative “suggested” law of their own that gutted some of the main rights granted to renters by URLTA.
URLTA said landlords could make repairs to problems in their apartment and deduct the cost from their rent. NAREE's version said no.
URLTA said landlords could not retaliate against tenants who blew the whistle on code violations by evicting them. NAREE's version said no.
URLTA said that landlords had to give tenants written notice before taking them to court, and that tenants had a right to represent themselves in court. NAREE's version said no notice was required, and would have made it legal for landlords to continue making confessions of judgment on behalf of their renters as they'd always done.
In 2016 NAR has found a more balanced view of tenants rights. They have learned that they can make more money by serving the entire population regardless of race. They have learned that lawsuits from unhappy tenants will wind up putting a serious dent in the buying power of their clients. While I'm all for a good heel-face turn, it doesn't undo their actions in the 1970s.
It is the credit of the Illinois legislature that by October 1973 they had rejected NAREE's suggested alternative “landlord-tenant act,” but unfortunately they had also rejected URLTA and several other options. It was back to the drawing board for tenants' rights in Illinois. Renters in the Land of Lincoln would have to wait over 30 years for Springfield to afford them the same level of protection as was available in the states that had written URLTA into law.
1973-1975: The Waiting Game
In 1973, you could go to the corner stationer and pick up a pre-printed, fill in the blank lease for a quarter. It was provided courtesy of CREB. Written in heavy legalese, it favored the landlord to a ridiculous extent.
- Tenants had to pay the landlord's attorney fees regardless of who won a lawsuit.
- The landlord had no liability for defects.
- The burden for complying with city codes fell primarily on the shoulders of the tenants.
- Rent withholding for repairs was banned.
- Tenants were required to waive their right to a confession of judgment, meaning that the landlord could represent them in court without even giving them notice that a trial was to take place.
When questioned about the waiver of confession of judgment in the standard lease, the attorney who drafted the lease admitted that he had struck out a similar clause from his own mortgage agreement out of fear that the bank would abuse it.
Renters, especially low income renters, were caught in Chicago's perpetually tight housing market. They had little choice but to accept whatever agreement the landlord offered them, even if they couldn't understand the language or were forced by the lease to surrender some of their basic rights. Judge Skelly Wright's ruling that made landlords responsible for the condition of their buildings also placed landlord-tenant disputes into the area of contract law. Whatever was in the lease was binding - and still is. Tenants would have to make any further progress by proving individual lease clauses to be invalid, one at a time.
In December of 1973 Chicago was found to have the 4th worst housing in the nation, behind St. Louis, New Orleans and Newark, NJ. The city was considering using the Home Rule law to create its own laws governing rentals. However, its efforts were focused on dealing with vacant lots and abandoned apartment buildings rather than protecting the tenants that remained inside them.
At this point no new laws protecting renters had come out of the state legislature since “Jack Spring v. Little”. Illinois legislators were working on some Security Deposit laws, which would eventually go into effect in 1977. After that, it would be 1982 before the next pro-tenant legislation would come out of Springfield in the form of a revised Forcible Entry and Detainer Act in 1982.
The most telling example of the disconnect between Springfield and Chicago can be seen in the Mobile Home Act of 1979. The act protected the rights of renters in mobile home parks. These were gaining popularity downstate, but only two had been approved for development in Chicago at the time. It's true that mobile homes were a new development at the time and therefore required legislation to address their existence. Even so, the fact that Illinois legislators were willing to provide rights and protections to tenants in mobile home parks while blatantly ignoring demands for similar protections for millions of inner city renters must have felt like a slap in the face to cities of northeastern Illinois.
In August the poorest renters had some help from Washington. Gerald Ford signed the Housing And Community Development Act of 1974, creating the Section 8 housing voucher program. Low-income tenants that had been previously kept in poor neighborhoods and projects were now able to rent any apartment in the city at fair market rates. It's debatable as to whether or not this was a good idea in the long run given the enormous conflicts that have followed the Section 8 program for its entire existence, but at least someone was making an effort.
A bright spot in the dark era of the early 70's was the case of “Clore v. Fredman,” which established in September of 1974 that retaliatory evictions were not legal in Illinois, although only if the retaliation was in response to a good faith complaint to a government agency about building code violations. You could still get evicted for complaining to the media.
However, these small steps weren't enough for one city in northeast Illinois.
1975: So How Does This Home Rule Thing Work?
The first US condominiums were in Puerto Rico in 1958. By 1969 condominium laws were on the books of every state in the country (yes, even Illinois!) addressing this new concept that you could own part of a building without having any real share of ownership of the land it stood on.
Condominium owners had an interest in making sure their buildings stayed in good shape. They were not terribly fond of absentee owners who bought condos and then rented them out – a rivalry that still exists today in condo buildings around the world.
By 1975, apartments were being converted to condos at an alarming rate in the greater Chicagoland area. One suburb in particular was hit heavily by the condo craze – Evanston, Chicago's neighbor to the north. Evanston is home of Northwestern University and has long been one of the most liberal cities in the US. With a population of nearly 80,000 residents, it also qualified for home rule.
A group of Northwestern students, local professionals and concerned condominium owners gave up on waiting for Springfield. They rallied together with the common interest of preserving tenant rights in a more formal manner. They wrote a body of laws that drew heavily on the language from URLTA and submitted it to the Evanston city council. On June 1, 1975, the Evanston Residential Landlord Tenant Ordinance went into effect – the first city law of its kind in Illinois. Home rule laws were still so new that they weren't sure if it would hold up in court, but they gave it a shot anyhow.
Inspired by their success, the Evanston group made things more formal in 1976. They called themselves the Tenants Organization of Evanston (TOE). Among their founding members were Joan Dworkin, Daniel Lauber (now a city planner), and Ann Rainey (now an Alderman in Evanston). They appointed Michael Pensack, now head of the Illinois Tenants Union, as their Director. Many members of the group had ties to the Chicago Freedom Movement, had marched with Dr. King in the 1960s, and were strong advocates for the rights of the poor and of minorities.
In 1977 the case of “Landry v. Smith” would put Evanston's new law to the test. By this time the state had finally established some protections for renters on the subject of security deposits. The courts were forced to decide between city and state law on a security deposit matter. Evanston's ordinance won out, but it still hadn't fully proved itself a valid law.
The TOE was steadily gaining clout. They had set up a hotline to help tenants with questions and problems. Their membership base included renters from not only Evanston, but many other surrounding cities and towns including Chicago. All members were required to contribute a small fee to for their services. By 1979 they were powerful enough to force Evanston to stop all apartment-to-condo conversions for several weeks pending the creation of a law that protected the stock of affordable apartments.
It would take until 1981 before the legitimacy of the Evanston RLTO was actually brought up in court, in the case of “Evanston vs. Create, Inc.” The question of whether or not Home Rule extended to landlord-tenant law was settled when the court ruled in favor of Evanston.
Other cities in the region were paying attention. The nearby suburb of Mount Prospect would work with Pensack to become the second Illinois town to enact their own rental laws in 1983. Chicago also took notice. City council member David Orr represented Chicago's 49th ward, which sits next to the Evanston border. Orr would eventually become the sponsor behind Chicago's push to pass similar legislation.
All the pieces were in place, but it would take another 5 years for the CRLTO to finally make it through the Chicago city council. We'll cover the final steps of the journey in part 4 this coming Friday.
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