Q-I own an apartment building that is governed by Chicago’s landlord-tenant ordinance. A tenant of mine has not paid the rent and now is on vacation. I understand from other tenants that he will be gone for at least a month. Can I consider his apartment abandoned and remove his property so I can rerent the apartment?
A-You probably can’t do it legally and you definitely shouldn’t take this action.
The City of Chicago Residential Landlord and Tenant Ordinance offers three tests a landlord can use to determine whether an apartment is abandoned.
First, where the tenant notifies the landlord that he will not return to the apartment.
Second, where the tenant has been absent from the apartment for at least 21 days or one rental period if it is less than a month; the tenant hasn`t paid the rent; and the tenant has removed all of his or her property from the apartment.
Third, and the test you probably are referring to, is where the apartment occupants have been absent for 32 days and the rent for that period is unpaid. In such a situation, the tenant need not have removed his or her property in order to constitute an abandonment.
The ordinance also provides that there is no abandonment, even if the above conditions are met, if the tenant gives written notice that he or she still intends to occupy the unit and makes full payment of any past-due rent.
The key to this situation is the intention of the tenant. The standards provided in the ordinance should probably be considered indicators of the tenant’s intentions. And while the ordinance does not provide other ways to determine the tenant’s intentions, the provisions should be construed as calling upon both tenant and landlord to show good faith.
In your situation, you are aware of the fact that the tenant is simply on vacation and has left his or her property in the apartment. You therefore know that this absence is temporary and that the tenant intends to return to the apartment.
Even though there is little flexibility in the wording of the ordinance, you must consider other factors, just as a judge is likely to do in such a case.
If you knew the tenant was vacationing, then the judge probably would find that you did not determine the abandonment in good faith. The abandonment provision cannot, and should not, be used by either tenant or landlord to circumvent other provisions of the law. If you know the tenant’s absence is temporary and that a true abandonment has not occurred, then you can use the regular, established eviction procedures the law provides in the event of non-payment of rent.
Q-I own a two-flat that has a back yard, which I let the tenants use. It often is used for barbecuing and other outdoor activities during the warmer months. Now a tenant has set up a pool there for his kids and it’s killing the grass. What can I do?
A-Because you allow the tenants to use the back yard, it should be considered a common area of the property, the same as hallways and other shared-use facilities. Along with the tenant’s privilege of using the yard comes the responsibility of using it in a responsible manner, so it will not damage the property.
Just as the tenant would be held responsible for damages caused by a barbecue fire that got out of control, the tenant probably would be held liable for damages caused by the pool.
As a first step, you must determine whether the grass is being killed or will come back once the pool is removed. Just as the tenant has the reasonable use of his or her apartment, subject to ordinary wear and tear, the same applies to the common areas. If the grass will recover when the pool is removed, then there is little, if any, actual damage being caused by the pool beyond ordinary wear and tear.
On the other hand, if you have to reseed, resod or re-landscape where the pool was located, this would not be considered ordinary wear and tear. In that event, the tenant should be instructed to remove the pool from the yard.
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Robert A. Boron, a Chicago attorney who specializes in leasing matters, writes about landlord and tenant issues for the Tribune. Questions to him can be addressed to Rental Q&A, Your Place section, Chicago Tribune, 435 N. Michigan Ave., Chicago, Ill. 60611. Sorry, but he cannot make personal replies.
