A property owner of rental units filed a lawsuit against the Village of Dolton and its administrator claiming that the Village's failure to "red tag" his tenant's units violated the Village's own ordinances. Mack argued that because of the Village's failure to shut the water off in these delinquent units, as the owner, he was left solely responsible for paying the unpaid water bills which, in some cases, exceeded $700, for a total amount of $18,000 for all of the unpaid bills for his tenants' properties. In his lawsuit, he asked the court to declare the Village's actions unlawful and to award him attorneys fees. Mack Industries, Ltd. v. Village of Dolton, 2015 IL App (1st) 133620.
The city filed a motion to dismiss the complaint based on the Tort Immunity Act. Specifically, the Village argued it was immune from liability under section 2-103 for failing to enforce its own ordinances and from section 2-104 for failing to issue permits or certificates. The court granted the motion, and Mack appealed.
The appellate court first held that the Village's ordinance clearly imposed joint and several liability for water charges on both the user (in this case, the tenant) and the owner (in this case, Mack). The ordinance authorized, but did not obligate, the Village to shut off water to a user for unpaid invoices by using language that provide that premises with delinquent accounts 'may be considered for red tagging in preparation for shut off of water to the premises." Consequently, Mack was not entitled to declaratory relief, because he had no right to the relief being requested - i.e., that the Village go after the tenant alone for the unpaid charges.
The court also rejected Mack's breach of contract argument, finding that the provision of water service "represents the exercise of its police power" and not the establishment of a contractual relationship between the Village and the water user or property owner.
Finally, the court rejected Mack's argument that the administrator engaged in "willful and wanton conduct" in not following the Village's ordinance.
Illinois municipalities may want to review their own water service regulations and ordinances to see whether they have similar language that authorizes, but does not obligate, the Village to shut off water to a property with unpaid water invoices. Additionally, if a municipality wants to hold the owner responsible for the unpaid invoices of its tenants (which can be particularly in situations where tenants move out without bringing their water account current), there should be language in the ordinance stating that an owner is jointly and severally responsible for these invoices.
Post Authored by Julie Tappendorf