Page 12 - John Hundley 2019

same affirmative defense previously available to litigants outside the landlord-tenant context, a panel of
the Appellate Court in Chicago held recently.

Ruling in Takiff Prop. Group Ltd. #2 v. GTI Life, Inc., 2018 IL App (1st)
171477, the panel also held that the duty to mitigate damages could be
waived contractually, at least in commercial leases.
The lease at issue in Takiff provided in pertinent part that if the lessee
abandoned the premises and the lessor elected to terminate the lessee’s
right to possession only, “the Lessor may, but need not, relet the
premises”. The panel interpreted that language as a contractual waiver of
the duty provided by the statute.
100% Overstatement Dooms Mechanic’s Lien

Misstatement of one’s mechanic’s lien by approximately 100% constitutes “constructive fraud” voiding
the mechanic’s lien claim as a matter of law, a panel of the Appellate Court in Chicago has ruled.

Acting in MEP Constr., LLC v. Truco MP, LLC, 2019 IL App (1st) 180539, the panel affirmed summary
judgment for the defendant where the plaintiff’s lien said it was owed $250,000 but its president admitted it
had performed about $124,000 in work.

Noting that § 7 of the Mechanic’s Lien Act (770 ILCS 60/7) is
“intended to protect an honest lien claimant who makes a mistake
rather than a dishonest claimant who knowingly makes a false
statement”, the panel said that if a claimant knowingly files a lien
containing a substantial overcharge, the claim should be invalidated
on the basis of constructive fraud.
Surveying decisions which found constructive fraud based on
overcharges of less than 100%, the panel found the appropriate
legal test met in the case before it.
Disclosure Act Attorney Fees Must Be Incurred

To be awarded attorney fees under the Residential Real Property Disclosure Act (765 ILCS 77) the
claimant must show not only that the fees were reasonable, but also that they were actually incurred, a
panel of the Appellate Court in Chicago held recently.
Ruling in Kroot v. Chan, 2019 IL App (1st) 181392, the panel reversed an award of $58,712.50 where
the claimant’s law firm admitted it was a contingency firm that did not create contemporaneous time
records and did not bill the client for the services rendered.
Noting “incurred” was part of the statute at issue (765 ILCS 77/55), the panel said “words appearing in
a statute cannot be ignored under the guise of construction” and “if no attorney fees have been incurred
by the prevailing party, the trial court has no authority under the statute to award such fees.”

Debbie\SharpThinking\#168.pdf
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