be made available back to the commercial tenant in january of two thousand and seven that didn't occur and it was about september of two thousand and eight that the construction is completed the plaintiff's satisfaction a thirty he's back to the commercial this case and assessing money for monetary damages against the tenant or related to the condition of the property after the tenant came back in october of two thousand and eight and the side of the property was not to their satisfaction lisa denham bided that the landlord was going to restore the restaurant space leased by the tenants to as close to the current floor plan as possible per building code requirements of a place ceiling tiles lighting each d the property they had the keys but they never took physical possession of the property and in fact the soonest use their back to them and they took a videotape of the commission of a property that was as of october fourth two property when they resumed the our took possession back from the leaders of the of the property in october of two thousand and eight the property clearly did not meet their expectations that they start operation the restaurant within it they were to go after the properties returned to us but within a reasonable time we expect the park commuter turned in substantially the same condition as when we vacated the property and that the plaintiff is going to do what do you agree to do under the for the need to take possession of property in january of two thousand and eight or when work was completed and we're talking about october of two thousand and eight more than ten months after the time that the repairs were originally supposed to be analysis and said that even if it was the case where the defendants not have an independent obligation to pay rent that this offense committed the first material breach of the lease by not paying rent and  when they agreed to live the property to the point as for their renovations and repairs the commercial expectation of the defense was certainly that they think the property back that they could move their restaurant equipment in and within a certain reasonal time back to the fact that the plaintiff was allowed to since arbitrarily choose that this project was done we're going to give the property back to the defendants regardless of what the condition of probably wasn't to be their problem they're going to have to deal with this was a general contractor for the renovations to this particular unit she was aware the condition of the property which was tendered back to the defendant has she been the property within a matter of days before  of property and it is a tense obligation at that point to defy the landlord that there are these issues with respect the property that we are asking the landlord to repair without that the landlord have no way  because i think the evidence again from the inspector from but from champaign urbana champagne or man public health district and the defendant's expert witness both concluded that the plaintiff not complied with this agreement court went on to say that because of the length of time this property had been taken and no rent to pay that the defendant committed first material breach by not paying rent however i think the court arrogance sense of the plane for suffer a forfeiture if there was not an order to fiction enter and because of the forfeiture suffered by the plaintiffs that in part weighed in favor of the determination that the plant defense committed the first material breach because it did not return the burpee to the tenants in the condition that complied with the lease and danda where they can preach because they didn't provide the the fence with a property that was suitable for operation restaurant with a short period of time after that if that was the case then that's a material breach the commercial expectations of the defendants were that again we get the property back in october two thousand and eight or were never in this repairs are done condition that clearly did not comply with the terms of the lease of denim because the multiple defects that skews the defense from pain or rent at that point i think that's a correct analysis rather than having the court determined that because we've had this case pending for more than a year and there's been no rent has been paying the properties been vacant that the condition of the property was not a material breach as of october of two eight instead of the plaintiffs and suffer much more of for sure by not being able to recover rent for that time period so i think the court err again in in determining what had occurred since the filing of the fiction november of two thousand eight hundred not paying rent if the property was simply not suitable for operation of a restaurant in october of two thousand and eight and the defense not take possession of the property they should have been excused from pain and the pla case actually found that the defendants weren't section if you look at the first page of the memorandum of opinion the bottom first paragraph of course says defendants have long persisted in it once retaining disagree with the oppose description of the state of broccoli when they got the piece and looked at it for the first time well i do disagree i think on the one hand when you look at the videotape that they were not and i think the very first reason that they were is the way lord head no it's the way we cannot be in breach of the lease unless the tenant is alleging hey there's a problem and you have to correct and the lease is the  there's no dispute that the first time the landlord learned that the tenant was claiming there were problems with the space was in march of two thousand and six months after h return in the letter of september two thousand that's the first time now the defendant's witnesses testified well we've made all that we tried to contact the landlord my client and ridges in the office  that my client did admit receiving a return phone call on her cell phone at one time after she had called want to know who the rebels but there was no discussion about the reason for not being there was no suggestion that anything was wrong  so my client had no know this that they were claiming anything was a problem until march of two thousand not just prior to the first appearance on the picture and that's when she received the words how can not even part of their promise so i mean anything they lease but they they gave him access to that space they had inspect the basement he testified on cross examination that certain things in his report that you listed his de understanding of what he thinks is wrong with the space she spent five six thousand dollars to correct various things and had him come back out and basically tell her ok all these  so within a very short period of time in a relatively minor expense the landlord had addressed all of the issues that the senate's claim were preventing them from operation restaurant there was a final meeting with the health defendants ages on the one hand are stating that i'll bring the restaurant was their primary focus and their goal is something they just they want to do but on the other hand they couldn't even try to find missing not us to put back on the stove they didn't investigate when i asked some of these but i beg to differ this addendum merely says that the landlord was going to renovate conduct renovation and expansion of the building during the construction period there would be no would do upon completion of the construction they would react now the tennis testified they had no idea what renovation be deprived of a benefit which is reasonably expected well if the if the turn is the injured party the court found that the tenets expectations were not reason criteria the court found that every wish so they easily could be compensated the court found that that factor weighed heavily in favor of the land the third factor the extent to which the party failing to perform the suffer forfeiture again the court found if it were to course of yes or that it's eighty thousand dollars just to buy the time to do the nation it's been another eight thousand dollars renovating the space it's been another five six addressing here additional  suffer a major forfeiture if i find that it's simply not having the property up to the tenants astronomical expectations which was a breach addressing the fourth and fifth factors though and these are factors of court really didn't address but that i would like to touch on because they think they weigh heavily in favor of my client the likelihood of the party failing to perform or to offer to perform sure the failure taking into account all circumstances the fact that the dollars to address those issues that those people come back and given the all clear is the best evidence and in fact the landlord testified had i known about these things in october of two thousand and eight i would have done the same thing we just wanted them to get the restaurant in operation that factor clearly weighs in favor of the land the final factor the extent to which the behavior of the party failing to perform or offer to perform comports are the standards of good faith leader if you like i don't know how the the most objective i really don't know what it is they wanted what motivated them but they didn't want to operate the rest and based on the other assessment they were found and i think that was clearly in the u s and in light of the playing the dishes and pots and pans heather it go on the dishes pots and pans put them back up on the racks hadn't cleaned the stove and removed the least that was on top of the stove so when she took possession of the problem really there so it cannot be considered because it's outside of the four orders of the written lea or correctly found that arguments of notice will not prevail the record is clear that these senators had more than thirty days from the time they received notice have the full brunt on of those cases the courts are saying that if it's a minor defect that makes repairs and then sue the landlord to recover the money or keep paying rent and sue the landlord to recover  they made that decision and i think it was an arbitrary and her decision that we're done with her we're going to pass this on to the fence and put the burden on them even though they've been out of operation of the restaurant for ten months longer than expected not generating income assign a new lease and a landlord turned over property to a new tenant this is the exact same situation i think the landlord is charged with knowing the condition of the property in this case especially with the the general contractor for this particular project she knew the condition the property and other to clear the proper be clearly the not satisfied of the fence reasonable expectations about this property and i think the court can analyze that issue very simply would the defendants have been able to gain a permit to operate from champaign urbana public health district but they did in july of two thousand and seven as of october first of two thousand and eight and operation arrest but the testimony also was that the defense do it didn't do anything to the restaurant between october first of two thousand and eight in february march of two thousand and nine when the inspector from the public health district inspected and also says both five to six thousand dollars that the landlord had to spend to repurpose a relatively modest sum but not if you are a tenant who's been out of the operation of the business and unable to generate income for much longer than anticipated and under the lease and then down yes they were paid eighty thousand dollars for their lost income lost profits through january of two thousand and eight but we're talking about top of two thousand and eight when the  them ten months after the they were supposed to take possession of the property they've been out of business and the issue is who is better to bear that burden the landlord who has controls property for the ten i think the land was a much better