Key Points

  • Claims for past-due, unpaid rent are assignable under Illinois law, so the Hantashes, as assignees of the former landlord's claim, had standing to sue.
  • The panel concluded that Kennedy v. Kennedy (1872), which held rents in arrear not assignable, is flatly inconsistent with the Illinois Supreme Court's modern view in Kleinwort Benson (1998) and Citibank (2017) that assignability is the rule.
  • The panel declined to follow the contrary statement in 1002 E. 87th Street, LLC v. Midway Broadcasting Corp. (2018), calling it dictum.
  • The panel refused to dismiss the appeal although only one of two appellants filed a brief, holding that the necessary-parties doctrine does not bar an appeal outside the administrative-review context.
  • The tenant's alternative dismissal grounds, failure to allege conditions precedent and conclusory pleading, were left for the circuit court to consider first on remand.

An Illinois appeals court ruled Nov. 9 that a landlord may transfer its right to collect overdue rent to someone else, declining to follow an 1872 Illinois Supreme Court decision holding that "rents in arrear are not assignable."

A three-justice panel of the First District Appellate Court reversed a Cook County judge's dismissal of a lawsuit by Basil and Debbie Hantash, who had acquired a former Chicago landlord's claim for unpaid rent against commercial tenant Affordable Portables Inc., which does business as Philips Interiors. Presiding Justice Ellis wrote the opinion, and Justices Fitzgerald Smith and Cobbs concurred.

Under the decision, a landlord owed back rent may assign that claim, and the party who receives it may sue the tenant to collect. The panel concluded that the 1872 case, Kennedy v. Kennedy, no longer reflects the Illinois Supreme Court's modern law on transferring legal claims, and it declined to follow a 2018 First District decision that had repeated the old rule.

"Supreme court decisions of any vintage are binding on us," Ellis wrote. But a review of recent rulings left the panel "only to conclude that Kennedy, though it has never been expressly overruled on this ground by the supreme court, is flatly inconsistent with the supreme court's recent pronouncements in this area."

According to the complaint, Affordable Portables leased commercial property on North Clark Street in Chicago in 2002. After several sales, the property was owned by 2600 N. Clark Street LLC as of 2021. The lease required the tenant to pay 38% of the property's real estate taxes, along with utilities and base rent, and the complaint alleges it failed to pay many of those charges while 2600 N. Clark Street was the landlord.

In 2024, 2600 N. Clark Street assigned its right to collect the unpaid rent to the Hantashes. Debbie Hantash was the company's managing member, and the two are married. They sued in January 2025, and Judge Jerry A. Esrig dismissed the complaint "solely on the ground that the Court finds that the Plaintiffs lack standing," meaning they had no legal right to bring the claim.

The opinion separated two kinds of rent. Unless the parties contract otherwise, when leased property is sold, the lease runs with the property, and the new owner becomes the landlord entitled to rent that comes due afterward. Rent that has already come due and gone unpaid stays with the landlord it was owed to, as a "chose in action," a right to sue for money owed. The Hantashes were suing not as landlords but as assignees of the earlier landlord's claim.

Whether the original landlord could transfer that claim was the question Kennedy had answered no. The panel looked instead to Kleinwort Benson North America Inc. v. Quantum Financial Services Inc., a 1998 Illinois Supreme Court decision, and Citibank N.A. v. Illinois Department of Revenue, a 2017 decision quoting it. Both endorsed what the Illinois Supreme Court has called "the modern view on assignability": "Today, assignability is the rule and nonassignability is the exception."

Quoting those decisions, the panel wrote that "the only causes of action that are not assignable are torts for personal injuries and actions for other wrongs of a personal nature, such as those that involve the reputation or feelings of the injured party." Courts may recognize other exceptions on public-policy grounds, but only sparingly.

The panel contrasted rent claims with legal malpractice claims, which Illinois courts generally bar from assignment because of the intimate attorney-client relationship and because such transfers would "commercialize legal malpractice suits" and "debase the legal profession." A rent claim, the panel found, involves no intimate or fiduciary relationship. "A lease, with its requirement to pay rent, is a garden-variety, arm's-length business transaction between two individuals and/or companies," Ellis wrote.

"We do not fault the circuit court for following Kennedy and Midway Broadcasting," the opinion said, referring to the 2018 decision, 1002 E. 87th Street LLC v. Midway Broadcasting Corp. But if nonassignability is the exception and is to be invoked sparingly, the panel wrote, "then we have no hesitation in concluding that claims for past-due, unpaid rent are, indeed, assignable."

The panel called the contrary statement in Midway Broadcasting "pure dictum." That case asked whether a new owner could sue for rent owed to the previous owner, and the court correctly held it could not because past-due rent does not run with the land. The former landlord in that case had not assigned the unpaid rent to the new one, the panel noted.

Before reaching the rent question, the panel rejected the tenant's request to dismiss the appeal outright. Both Hantashes filed a joint notice of appeal, but only Basil Hantash, representing himself, filed a brief. Affordable Portables argued that Debbie Hantash was a "necessary party" who had "abandoned" her appeal. The panel held that the notice of appeal gave it jurisdiction over both spouses and that dismissal for a missing brief was discretionary.

The panel kept Debbie Hantash's appeal alive because her interests were aligned with her husband's, and he had filed "a coherent argument for reversal." "If he prevails on appeal, so does she," Ellis wrote. The necessary-parties doctrine, which voids judgments entered without a party whose participation is required, serves to attack trial judgments, not to end appeals, the panel held, except in reviews of administrative action, where state law often requires that all defendants be joined.

"It would be grossly unfair if an appellant were denied her day in (appellate) court simply because a different appellant chose, for whatever reason—lack of money, settlement, bankruptcy, etc.—not to prosecute an appeal," the opinion said.

Basil Hantash represented himself on appeal. Affordable Portables was represented by Monica A. Forte of Forte & Associates LLC.

The case now returns to the Cook County circuit court. Affordable Portables had also argued that the complaint failed to allege that the Hantashes performed conditions precedent to suing and that it pleaded conclusions rather than facts. The panel left those arguments for the circuit court to decide first. "It is not clear to us that any of these additional arguments would warrant a dismissal with prejudice, as opposed to pleading defects for which the court might allow amendment," Ellis wrote.