J M B Properties Urban Company v. Paolucci

604 N.E.2d 967 (1992)

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Nature of the Case

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Facts

D opened a jewelry store in the Joliet Mall in 1978. Barretts Audio and Video Store (Barretts) moved in next door in November of 1984. D and Barretts shared a common wall. In December of 1984, d began complaining to then-landlord Homart Development Company about the high level of noise emanating from Barretts. D continued to lodge such complaints periodically until Barretts vacated the mall in February of 1990. P purchased the mall in September of 1985 and took an assignment of all outstanding leases. In August of 1986, D entered into a new six-year lease with Carlyle which required that d operate the jewelry store during the entire term of the lease and refrain from operating any similar business within a five-mile radius of the mall. D failed to pay rent for July 1990 and vacated the premises in August 1990, two years prior to the end of the lease. D moved to a new location within a five-mile radius of the mall. P sued seeking past-due rent and penalties for violating the lease. D alleged that he had been constructively evicted as a result of Carlyle's failure to control the excessive noise generated by Barretts. D and his employees testified that when Barretts' employees conducted demonstrations of their stereo equipment, the walls of the jewelry store literally shook, causing pictures to rattle on the jewelry store walls. The vibrations caused merchandise in display cases to move or topple over so that the display cases had to be reset almost daily. Barretts' employees refused numerous requests to lower the volume. One of the employees testified that the noise was so loud that at one point, she resorted to wearing earplugs at work. Customers occasionally complained of the noise and at times were unwilling to conduct business in the jewelry store because of the nuisance. Barretts insulated the common wall in an attempt to soundproof it in 1985, but this failed to alleviate the problem. D had complained hundreds of times to P. The court held that D had been constructively evicted. P appealed.