delivered the opinion of the court:
The defendants, Felipe and Mary Perez, appeal from a judgment for possession of leased premises in favor оf the plaintiff, Enrique Elizondo, pursuant to forcible entry and detainer proceedings in the Circuit Court of Cook County. They also аppeal from a denial of their motion to vacate the judgment of possession.
The issues for review are whethеr a landlord may forfeit and determine a lease after a tenant fails to make a rental payment within the time prоvided by a statutory notice (Ill. Rev. Stat. 1973, ch. 80, par. 8), whether a defendant is entitled to equitable relief to prevent the forfеiture of his lease, and whether the landlord was under an obligation to repair the leased premises by reason of an implied, warranty of habitability.
The plaintiff rented commercial premises to the defendants at 3435-37 West 26th Street in the City of Chicаgo under a written lease beginning November 1,1972, and ending October 31,1977. Rental payments of $500 were to be made on the first day of еach month.
The defendants failed to make a rent payment for January of 1975 as required by the lease, and on January 13,1975, thе plaintiff served a five-day notice on the defendants. The defendants failed to tender rent within the time provided and a fоrcible entry and detainer suit was filed on January 22, 1975. Subsequently, the defendant sent a *500 check to the plaintiff in a letter postmаrked January 29,1975. At trial Elizondo testified he did not accept the check and tendered it back to the defendants.
The defendants testified the rent had been withheld for the reason that the plaintiff had refused to repair cracked windows on the premises. The trial court ruled it was not the plaintiff’s obligation to repair the windows, the defendants were in default under the leаse for failing to make a timely payment of rent, the plaintiff was not obligated to accept the rent check at the time it was tendered, and thereafter entered an order of possession in favor of the plaintiff and against the dеfendants.
By agreement of the parties the writ of restitution was delayed provided the defendants pay to the plaintiff the amount of *500 per month for the use and occupancy of the premises. Thereafter, the plaintiff acceрted defendants’ January rental check and checks for subsequent months.
Section 8 of “An Act to revise the law in relation to landlord and tenant” (Ill. Rev. Stat. 1973, ch. 80, par. 8) provides a landlord may terminate a lease with a tenant who had defaulted in thе payment of rent as follows:
“That a landlord or his agent may, any time after rent is due, demand payment thereof and notify thе tenant, in writing, that unless payment is made within a time mentioned in such notice, not less than five days after service thereof, the lease will be terminated. If the tenant shall not within the time mentioned in such notice, pay the rent due, the landlord may consider thе lease ended, and sue for the possession under the statute in relation of [to] forcible entry and detainer, or maintain ejectment without further notice or demand. * *
In this case the defendants admitted receiving the five days notice and admittеd failing to make payment within the period provided. The right of a landlord to terminate a lease when the lessee fails to make payment within the time provided in the statute is well settled. Juhasz v. Haisan (1949),
Although it is not in the record, the defendants assert thе plaintiff has a *5000 security deposit and they contend that equity will grant relief to prevent a forfeiture of a lease whеre there is a strong expectation the tenant’s convenants will be faithfully performed, citing Soltwisch v. Blum (1973),
However, that case held it would be inequitable to nullify the plain wording of the lease and place the landlord at the mercy of a tenant who clearly flouts the provisions of his lease without legal excuse. Here, the court held the lessor had no respоnsibility for repairing the cracked windows, and it is clear the defendants deliberately failed to pay the rent, even aftеr receiving a five-day notice. Thus, they are not entitled to equitable relief. The defendants’ contention on appeal that a structural defect in the building prevented them from replacing the windows cannot be considered here, because no such argument was made at trial.
The defendants also contend equity should be invoked because the plаintiff’s possession of the *5000 security deposit protected him against loss, and rely on the case of In re Hool Realty Co. (7th Cir. 1924),
“It is our opinion that in all cases of forfeiture the court should jealously regard the legal and equitable rights of all parties, but this does not mean thаt we can rewrite the lease with new legal provisions or create equitable rights allowing an indefinite postponеment of the legal right of repossession, without provision for payment of the defaulted rental.”79 F.2d 777 , 782.
Similarly, this court cannot disrеgard the statute and create a right allowing the defendants to postpone their rent payments.
Finally, the defendants contend the case of Jack Spring, Inc. v. Little (1972),
For these reasons, the judgment of the Circuit Court of Cook County is affirmed.
Affirmed.
JOHNSON, P. J., and ADESKO, J., concur.