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No. 3-00-0902
December 14, 2001

_______________________________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2001

_______________________________________________________________________________________________

_______________________________________________________________________________________________

The plaintiff, Housing Authority of Joliet (HousingAuthority), brought a forcible entry and detainer action againstdefendant, Patricia Keys, to evict Keys from her residence. Thetrial court held that public housing tenants cannot be evicted forthe criminal activities of guests or family members over whom theyhave no control. We affirm.

Keys is a tenant in federally subsidized public housingmanaged by the Housing Authority. Her adult grandson, JeffreyCampbell, was named as a household member on her lease and residedwith her but was not a party to the lease.

On April 19, 2000, Devon Johnson was robbed and shot at Keys'residence. Campbell and Angela McDonald, Keys' adult niece who didnot reside with Keys, were arrested and subsequently confessed. When the crime occurred, Keys was a patient in the hospital.

A month later, the Housing Authority served Keys with a noticeto terminate her tenancy. The Housing Authority then filed aforcible entry and detainer action against her. The trial courtentered judgment in favor of Keys, and the Housing Authority movedto reconsider. The trial court denied the motion, holding that atenant "without notice and without control over guests or familymembers cannot lose his or her lease hold [sic] interest in theproperty." The Housing Authority appeals.

Keys has not filed an appellee's brief. Even so, because therecord is short and the claimed error is such that we can easilydecide the issue without the aid of an appellee's brief, we willaddress the merits of the appeal. First Capitol Mortgage Corp. v.Talandis Construction Corp., 63 Ill. 2d 128, 133, 345 N.E.2d 493,495 (1976).

We must decide whether Keys' eviction was (1) authorized bythe Housing Authority's lease with her; (2) mandated by federallaw; or (3) unconstitutional as fundamentally unfair and violativeof due process.

I

We first consider whether the Housing Authority's lease withKeys supports her eviction. The Housing Authority contends thatCampbell and McDonald's criminal acts, committed without Keys'knowledge and in her absence from the residence, constitute aviolation of the lease. The Housing Authority bases thiscontention on an addendum to Keys' lease which states, in part,"Tenant, any member of the Tenant household, a guest, or anotherperson under Tenant's control shall not engage in or permit * * *[a]ny criminal activity * * * on or off the premises * * *." Abreach of this portion of the lease is grounds for eviction.

Thus, the Housing Authority can evict a tenant if it can show:(1) criminal activity; (2) occurring on or off the premises of thepublic housing; (3) by the tenant, a "member of the [t]enant['s]household, a guest, or another person under [t]enant's control."

Here, the first two factors were not contested. Campbell andMcDonald confessed to the crime that took place in Keys' residence. Further, the crimes were perpetrated by a member of Keys' householdand a guest. Thus, we must determine the meaning and context ofthe word "control" in the lease.

A

The Housing Authority argues that "control" means only thetenant's ability to determine who has access to the residence. Itcontends that household members and guests are per se under atenant's control.

A lease is a type of contract governed by the rules thatgovern contracts generally. Midland Management Co. v. Helgason,158 Ill. 2d 98, 103, 630 N.E.2d 836, 839 (1994). As with anycontract, a reviewing court must determine and effectuate themeaning of the plain and ordinary language of a lease de novo. Piasecki v. Liberty Life Assurance Co. of Boston, 312 Ill. App. 3d872, 873, 728 N.E.2d 71, 72 (2000).

When construing a lease, we must ascertain the intention ofthe parties from the language of the lease, giving the words usedtheir common and generally accepted meaning. Chicago HousingAuthority v. Rose, 203 Ill. App. 3d 208, 216, 560 N.E.2d 1131, 1136(1990). Control is defined as "power or authority to guide ormanage: directing or restraining domination" (Webster's Third NewInternational Dictionary 496 (1986)). A tenant who does not atleast have knowledge of a household member's or a guest's criminalactivity does not have "control" over that household member orguest. American Apartment Management Co. v. Phillips, 274 Ill.App. 3d 556, 566, 653 N.E.2d 834, 840 (1995).

We reject the limited definition urged upon us by the HousingAuthority and believe that control implies some power to restrainor direct on the part of the tenant. Other Illinois cases agreethat simply granting access to the residence is not sufficient toallow eviction. See American Apartment Management, 274 Ill. App.3d at 566, 653 N.E.2d at 840 (a tenant must have knowledge of aguest's criminal activity before that guest can be considered underthe tenant's control); Chicago Housing Authority v. Rose, 203 Ill.App. 3d 208, 560 N.E.2d 1131 (1990) (to "permit" illegal activityin her apartment, the tenant must have knowledge of the activityand assent or agree to its commission); Mid Northern Management v.Heinzeroth, 234 Ill. App. 3d 240, 599 N.E.2d 568 (1992) (tenant didnot permit child to commit acts that disturbed neighbors when shedid not even know of the incidents involved); Kimball HillManagement Co. v. Roper, 314 Ill. App. 3d 975, 733 N.E.2d 458(2000) (tenant's knowledge of or involvement in criminal activitynecessary before she can be found to have permitted it);Diversified Realty Group, Inc. v. Davis, 257 Ill. App. 3d 417, 628N.E.2d 1081 (1993) (tenant did not breach lease term forbidding herto permit unlawful activities in the unit when she had no knowledgeof her son's possession of drug paraphernalia).

In this case, Keys was a patient in the hospital when thecrime occurred and had no knowledge of its commission. BecauseKeys had no restraining influence over Campbell and McDonald at thetime they committed the crime, the trial court's finding they werenot "under [t]enant's control" was not against the manifest weightof the evidence.

Moreover, to construe control as narrowly as the HousingAuthority suggests would allow for absurd results. For instance,a tenant becomes a candidate for eviction when she allows into herhome an insurance salesperson who, unbeknownst to the tenant, iscarrying a concealed weapon. This court will not construe acontract to obtain such absurd results. Rubin v. Laser, 301 Ill.App. 3d 60, 68, 703 N.E.2d 453, 459 (1998).

B

The lease says that "any member of the Tenant household, aguest, or another person under Tenant's control shall not engage inor permit * * * [a]ny criminal activity." The Housing Authorityargues that the phrase "under [t]enant's control" does not relateback to household members or guests, because it modifies only thewords "another person."

When a lease provision can be plausibly read in more than oneway, that provision is ambiguous. American Apartment Management,274 Ill. App. 3d at 566, 653 N.E.2d at 840. Ambiguous lease termsmust be construed against the drafter of the lease. AmericanApartment Management, 274 Ill. App. 3d at 566, 653 N.E.2d at 840. Where there is any doubt or uncertainty as to the meaning of thelanguage used in a lease, it should be construed most stronglyagainst the lessor and in favor of the lessee. Kimball HillManagement Co. v. Roper, 314 Ill. App. 3d 975, 980, 733 N.E.2d 458,462 (2000).

In American Apartment Management, the court construed asection 8 federally subsidized housing lease that stated, "'a guestor other person under the Tenant's control shall not engage in orfacilitate criminal activity.'" American Apartment Management, 274 Ill. App. 3d at 566, 653 N.E.2d at 840. The plaintiffcontended that the control referred only to "other person" and notto "guest." The court held that the lease could reasonably beinterpreted in that way, but that it could also be construed tomean that a guest also must be under the tenant's control. Becausethe lease could be plausibly construed in more than one way, thecourt held that it was ambiguous. American Apartment Management, 274 Ill. App. 3d at 566, 653 N.E.2d at 840. Illinois courts haveuniformly found similar subsidized or public housing leases to beambiguous. See Chicago Housing Authority v. Rose, 203 Ill. App. 3d208, 560 N.E.2d 1131 (1990) (lease providing that tenant could notpermit guns to be brought into the residence did not unambiguouslyimpose strict liability); Mid Northern Management, Inc. v.Heinzeroth, 234 Ill. App. 3d 240, 599 N.E.2d 568 (1992) (leasestating that tenant will not permit acts that will disturbneighbors did not unambiguously provide for strict liability oftenant who did not know of her son's actions).

We agree with the American Apartment Management court'sanalysis. The lease can credibly be interpreted to impose a strictliability on tenants, as the Housing Authority urges. However, thephrase "under [t]enant's control" can also be read to fairly modifyall of the named categories, i.e., household members, guests, oranother person.

Even the Housing Authority's choice of language, "anotherperson under [t]enant's control" (emphasis added), supports acontrary interpretation. Use of the modifier "another" before"person under [t]enant's control" appears to refer back to thepreviously referenced persons, namely, household members andguests.

Since we find the lease ambiguous, its terms must be construedagainst the Housing Authority as the drafter of the lease. SeeAmerican Apartment Management, 274 Ill. App. 3d at 566, 653 N.E.2dat 841. Thus, we find that a tenant must exercise control overhousehold members and guests as well as other persons who engage incriminal activity in order to allow the tenant's eviction. Weagree with the trial court that Keys exercised no control overCampbell and McDonald.

II

A

Next, the Housing Authority argues that federal law requiresstrict liability of tenants for the criminal acts of theirhousehold members and guests. We will therefore address theHousing Authority's contention that federal law requires Keys'eviction.

The Anti-Drug Abuse Act of 1988 (42 U.S.C.