legalbook2

Frequently Asked Questions

Q: I bought a car yesterday, but found a cheaper car I really want more. Can I cancel the sale of the first car?

A: There is no “grace” period for canceling contracts for cars or other items of personal property. You have the right to ask the seller to cancel or “rescind” the sale, but it is unlikely the seller will be willing to do this. More likely, a dealer may agree to allow you to do an exchange for another car on the lot, typically, however, only for a car that costs as much or more than the car you want to return. You may have a legal right to return the car, but only if the seller has engaged in fraud, made a material misrepresentation regarding the car, or by hiding a substantial defect in the car. If you suspect this is the case, contact an attorney.

Q: I took my car to a mechanic who did work I never authorized, and now the mechanic won’t give me my car back until I pay him. What are my rights?

A: You are not required to pay for work you did not authorize. Whether you gave authorization is a question of fact to be determined by a judge or jury, if the dispute goes to court. Authorization does not have to be in writing, so you should make it very clear to the mechanic that you only want the mechanic to look over the car, and not do any repair before calling you and getting your authorization to do the work. Keep in mind that a mechanic has the right to charge you for his time in diagnosing your problem, even if he doesn’t do the work. Clarify with the mechanic in advance whether there is a charge for the diagnostic work, and how much it will be.

Mechanics enjoy a statutory “lien” on goods they have done work on. This means they have the right to keep the vehicle until you pay them, even for work you did not authorize. In this situation, you should pay the bill “under protest.” This insures that you can take the mechanic to court later to get your money back. Often, stating your intention to sue will lead the mechanic to try to negotiate the bill. Never try to take the car off the property without paying for it, since this subjects you to possible criminal prosecution for theft of services, trespassing, etc.

Q: Do I need to go to court to change my name?

A: No, it is highly advisable but not required to obtain a court order to change your name. A court order is a universally recognized method of verifying a change of name, without which you may encounter substantial difficulty obtaining identification reflecting your new name. In Illinois, there is a specific procedure to obtain a court-ordered name change. The forms necessary to do this should be available in the County Clerk's office. Changing the legal name of a child is more complicated, requiring the consent of both parents, or the approval of a judge in the event one of the parents objects to the name change.

Q: Can I get out of my lease?

A: A lease is a contract, which binds both parties to perform on the contract according to the terms thereof. There are two ways to get out of a contract: first, by mutual agreement of the parties, and, second, where the other party has failed to perform on his or her side of the contract. This failure to perform, called a “breach of contract” must be “material,” going to the essence of the agreement. Even where there is a material breach of contract, the breaching party normally is given a reasonable opportunity to “cure” or fix the breach.

Some contracts contain provisions that allow a party to terminate the contract upon the occurrence of some event, or by paying a specified sum of money in satisfaction of all the obligations the party has under the contract. If you think you might need to be released from your lease early, it is a good idea to try to negotiate with the landlord at the time you enter the lease for the right to terminate early.

Q: I never signed my lease. Does that mean it’s not binding?

A: Not necessarily. It depends on the circumstances. Contracts can be written or oral. Whether an oral contact has come into existence depends on the intentions of the parties. If the parties agree that there will be no contract until the parties “execute” (sign) a written agreement, then the failure to execute a written agreement would signify that no contract had come into existence. On the other hand, a written document can be regarded as merely a memorialization of the existence of an oral contract. In this case, a contract exists even without the execution of the written document.

Oral contracts have certain limitations as defined by what is called The Statute of Frauds. Among the limitations is that an oral contract that purports to be for more than one year is voidable. The Statute of Frauds applies only to the un-executed portion of the contract. Once a party has performed on an oral contract, at least that portion of the contract is enforceable against the other party.

Q: A creditor is threatening to report my failure to pay their bill and give me bad credit. Can they do that?

A: Yes, but you can dispute the bill if you have a legitimate reason to do so, and your objection(s) must be made part of your official credit report, pursuant to a federal statute called The Fair Debt Reporting Act. This Act also requires a credit reporting agency to check on the validity of a debt if you challenge it. Further, the effect of a notice of late or non-payment of a bill on your credit worthiness depends on the circumstances. A single instance of late payment, or non-payment—particularly where there is a legitimate reason for the non-payment—may not give you the “bad” credit the creditor says it will.

Q: My roommate told me the police came to our apartment and said they wanted to talk to me. What should I do?

A: Contact a lawyer immediately. You do not have to talk to the police if what you say could be used to incriminate you. Thus, it is important to determine why the police want to speak with you. It is a crime to make false statements to the police, for example, giving a false name. If the police approach you on the street or somewhere else, you have a duty to identify yourself. Under the law, you also have a duty to cooperate with the police, but this does not mean you have to incriminate yourself. If you tell the police you do not wish to speak with them, they must respect your right not to speak with them beyond giving them your name and address. This does not mean the police cannot arrest you, only that they cannot force you to talk to them and then use your statements against you.

Q: Can the police enter my apartment without a warrant?

A: Only if you or someone else in the apartment with apparent authority give consent to the police entering the apartment, or if there are “exigent” (emergency) circumstances justifying the police entry. Exigent circumstances would include the police officer’s having reasonable suspicion that a crime had been or is about to be committed in the premises, or that evidence of criminal conduct is likely to be destroyed during the time required for the police to obtain a warrant.

If the police tell you they have a warrant to search your apartment, you have a right to demand that they show you the warrant. Never physically resist the police entering the premises, whether or not they have a warrant. It is enough to state verbally that you are not giving your consent to the entry. The legality of the entry will be determined later in a court of law.

Q: Is it a crime to have sex with someone who is very drunk but doesn’t resist me?

A: Sex with anyone who has not consented to it is a serious crime. In Illinois, "sexual assault" is a Class 1 felony punishable by a mandatory minimum prison sentence of four (4) years. Sexual assault occurs when the accused person uses force or threat of force to have sex, or when the accused knew that the victim was unable to understand the nature of the act or was unable to give knowing consent. The fact that the victim did not resist is not sufficient to establish consent.

Q: My roommate left and isn’t paying his/her share of the rent. What can I do?

A: If you and your roommate signed the same lease, you are likely legally responsible for the whole rent (consult an attorney about this), and would be subject to eviction if you could not pay your roommate’s share and the landlord isn’t willing to work with you to resolve the problem. In turn, you have a “cause of action” against your roommate for the damages you suffer as a result of your roommate’s failure to pay his/her share, and can sue in court for the damages. Damages would include the extra rent you pay to the landlord, and any pre-paid rent and/or security deposit you paid that was taken by the landlord for unpaid rent.

Q: It’s miserably cold in my apartment and the landlord says there’s nothing he can do about it and that I should rent a space heater. What can I do?

A: By law, all leases in Illinois have imputed to them an “implied warranty of habitability” which requires the landlord to provide a premises which is “habitable,” i.e., does not have conditions which threaten the tenant(s)’ health or safety. Where there is a housing code, or property maintenance code in the municipality where you live, habitability means that the landlord is in compliance with the code. Where there is no such code in effect, a judge on his or her own determines whether the premises are habitable.

In the City of DeKalb, the Property Maintenance Code mandates that every dwelling unit shall be provided with heating facilities capable of maintaining a room temperature of 65 degrees Fahrenheit in all habitable rooms, bathrooms and toilet rooms between the hours of 6:30 a.m. and 10:30 p.m.; between the hours of 10:30 p.m. and 6:30 a.m., the temperature shall be at least 60 degrees.If you are encountering heating problems, you should contact your landlord, and, at the same time, verify the temperatures in your premises by recording the temperature over a 24-48 hour period. If the landlord does not resolve the problem, you can contact the City of DeKalb Building and Community Development Office, 815-748-2070, and ask for a city inspection of the apartment. If the City verifies the violation, it will require the landlord to fix the problem.

Q: What is an expungement?

A: An expungement is a procedure whereby records of a person’s arrest and court records, in some cases including convictions, are either returned to the person or sealed so that the records cannot be accessed by the general public. Expungement involves a relatively simple and inexpensive court procedure.  Forms are available in the Office of the Circuit Clerk in the county where the case was filed.Not every case can be expunged. The pre-printed forms may indicate which offenses are expungeable and which are not. If you are not sure about your case, consult an attorney. There are also time requirements involved. Charge(s) which have been dismissed on the state’s motion or which a defendant was acquitted at trial are expungeable immediately. Cases which are dismissed following a period of court supervision are expungeable either two or five years after the case was dismissed, provided the offense is not one which the legislature designated as not being expungeable. Under a new Illinois law, certain misdemeanor convictions can also be expunged, provided certain conditions are met. See an attorney.

Q: I’ve heard I can lose my car if I am arrested while my driving privileges are suspended for DUI. Is this true?

A: Yes. In Illinois, a person who drives a motor vehicle during a DUI suspension is subject to a mandatory jail term of a minimum of ten (10) days or three hundred (300) hours of community service work, plus the forfeiture of the vehicle, assuming they own it.

Q: I have a child. The mother and I are not married. Do I have a right to visitation? Do I have to pay child support?

A: The rights and responsibilities of being a parent exist whether or not the parties are married. Under the law, either party can petition the court for a determination of paternity. If the parties consent, an Order establishing paternity can be entered expeditiously. If either party denies paternity, the court will order the parties and the minor child to submit to DNA testing that will establish whether the ‘putative’ father is the natural father.

Once paternity has been established, the court may consider all the other questions relating to the support and care of the child: custody, visitation, child support, etc. Both parents have the legal duty to support their child. If the mother is receiving assistance from the state, both the mother and the state have the right to seek a court order requiring the father to pay child support. A parent has the right to reasonable visitation with his or her child, provided the parent is not deemed “unfit” to have visitation. Visitation can be “restricted” if the court finds there is reason to do so.In Illinois, and elsewhere, there is a risk that the natural father’s rights can be terminated if he does not establish a relationship with the child and does not seek a legal determination of his paternity within a reasonable time after the child’s birth. Consult an attorney.

Q: My lease has all sorts of provisions that require me to pay my landlord money if I have a party, a pet, or if I want to sublet my apartment. Are these provisions enforceable?

A: In DeKalb, such provisions are very common among leases for student housing. According to principles of contract law, “penalty” clauses are not enforceable, whereas “liquidated damages” clauses are enforceable. The explanation of these concepts and the process a court uses to determine if a given provision is a penalty or a liquidated damages clause is beyond the scope of this format. You should consult an attorney.

Apart from the legal question is the practical consideration that having an illegal pet, or a raucous party in violation of the lease could result in eviction of the tenants. A fine has the dual purpose of compensating the landlord for potential damage and deterring the tenant from engaging in conduct the landlord does not want to take place, without the drastic remedy of an eviction. At times, the amount of a fine takes on the appearance of the landlord making a windfall profit more than compensating the landlord for damage. Thus, there is a difficult decision that is often to be made of refusing to pay a fine and risking eviction, or paying a fine that may or may not be enforceable if the matter went to court.Some charges, such as charging a month’s rent in return for the landlord allowing the tenant to sublet, are, in the view of the Students Legal Assistance attorneys, almost certainly unenforceable. The reason for this is because the City of DeKalb Landlord-Tenant Ordinance contains a provision, Chapter 10.11, which bars a landlord from placing “prohibitions on subleasing options of a tenant.”  It is the opinion of the SLAO attorneys that charging a tenant $600-$1,100 to sublet his or her apartment violates Section 10.11.

Q: I received a speeding ticket. Should I go to court or just pay the fine?

A: This is a deceptively easy question that takes some thought to answer. A lot depends on your driving record. If you are under 21, or if you have other recent tickets (in the past 12 months if you are over 21 years old, or the past 24 months if you are under 21), you are in jeopardy of having your driving privileges suspended based on this ticket or your next ticket. For most individuals, it is worth the trouble to seek court supervision (either by agreeing to go to driving school or by showing up in court and asking the judge for court supervision). Court supervision, if successfully completed, insures that the ticket does not result in a conviction that is then reported to the Secretary of State. Convictions can also impact your insurance rates. Overall, it is prudent to consult an attorney about any ticket you receive, particularly if you are under 21 or have had other tickets in the recent past.