Q–My daughter was injured coming down the stairs in front of our apartment building. I’ve told my landlord about her injury, and he has refused to pay for her medical expenses. He said he would turn it over to his insurance company.
We haven’t paid the rent, because I have used that money to pay her doctor bills. Besides, I don’t think I should have to deal with paying him the rent until he deals with paying for my daughter’s medical bills.
He has threatened to take me to court to evict me if I don’t pay the rent. Can he have me evicted for not paying the rent when he hasn’t paid the expenses for my daughter’s injuries?
A–He most certainly can file the eviction suit against you for non-payment of rent and there is a good chance he could could win it and have you evicted, even though he hasn’t dealt with your daughter’s injuries.
The fact that your daughter has been injured in the building cannot be used as a defense to non-payment of rent. Those matters are deemed, under law, separate issues, and one issue cannot be used to offset the other.
If the landlord files suit for non-payment of rent, then you are allowed to assert any defense that is “germane” to the issue of possession and rent. To be considered germane, the reason for which you have failed to pay the rent must be related directly to the issue of the tenancy and not to some unrelated claim.
Your daughter’s injury at the building was not related to the existence of the tenancy. She could have been injured at the building, or any building, regardless of whether you were a tenant there. You therefore cannot use that injury or the damages resulting from it to excuse the obligation to pay rent.
On the other hand, if the injury was caused by a defective condition at the building, which you did not cause and which the landlord was required to fix but failed to repair, that could be used as a partial defense to his action against you for rent and possession.
The landlord is required to provide you with a reasonably safe building, and by paying your full rent, you are entitled to that safe environment. If there is a defective condition that the landlord has failed to fix, then there may be a decrease in the value of your apartment. You have the right to assign some reasonable value to the defective condition of the stairs, for instance, and can claim that you withheld that amount from the rent to reflect the decreased value of the apartment.
In Chicago, if your building is subject to the city’s Residential Landlord and Tenant Ordinance, you are supposed to provide notice of the defective condition to the landlord, and you must provide him with an opportunity to repair the condition before you can make the deduction from the rent. There is some case law in Illinois, however, that allows such a deduction without regard to the city’s ordinance.
Under the circumstances, you should hire a lawyer to deal with the issue of your daughter’s injuries. The longer you wait, the harder it will be to document your losses and to prove your case regarding her injuries.
In the meantime, you should immediately contact your landlord and talk about your non-payment of rent. He may be unwilling to grant you a reduction in rent, because to do so might be considered an admission as to the condition of the stairs. In that event, you should ask your lawyer how to address this dilemma without jeopardizing your daughter’s case, which is your major issue. Also, if your daughter is currently recovering from her injuries, you don’t want to have to face the possibility of eviction during her convalescence, which could happen if a judge ruled that you owe rent and that the landlord is entitled to evict you.
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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.
