I went took an eviction case to trial yesterday, and my client, the landlord, got a pretty bum deal from the judge. Although we successfully obtained an eviction order against the tenants, my client took a sizable haircut on the back rent.
The monthly rent for the property was $2,000, and my client let 20 (yes, 20!) months pass without doing anything about it. By the time it went to trial, the judge declined to award the full $42,000 in rent my client was owed, and instead awarded us 12,000.
That isn’t to say that the judge did anything wrong–he didn’t. He awarded my client exactly what he was due under the law. My client’s loss is a direct result of the choice he made to do nothing for almost two years. Don’t be like my client. Be proactive about your late or non-paying tenants. Hopefully, this blog post will give you some tips about how to be proactive. And, as an added bonus, this post includes free Illinois eviction forms that landlords are free to use.
Because I am including free Illinois eviction forms, read the following disclaimer:
This blog post and the forms and advice it contains are published by Dickson Law Group, LLC and Attorney John P. Dickson for educational purposes only and to give you what I believe are the best practices landlords should follow. This blog post does not contain specific legal advice for your situation because I know nothing about your specific situation. By using this blog post you understand that there is no attorney client relationship between you and either Dickson Law Group, LLC or Attorney John P. Dickson. The blog post should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. This blog post describes Illinois law. If your legal issue is based in a different jurisdiction, this blog post will be largely worthless for you. The law constantly changes. I cannot guarantee that the forms I include in this blog post are current and acceptable for your purposes.
Got it? OK, let’s proceed.
This advice does not apply to properties located in Chicago or Evanston. Check your local jurisdiction to see if they have a similar law.
Chicago and Evanston have residential landlord-tenant ordinances that supersede much of the advice given in this blog post. As of the date of this post (April 2016), Chicago and Evanston are the only locations in Illinois that I know have residential landlord-tenant ordinances. If you stumble across this blog post at a later date, you should determine whether your local jurisdiction has adopted such a law.
How Illinois evictions work.
Evictions are governed by the Forcible Entry and Detainer law, which is codified at 735 ILCS 5/9-101, et seq. Because the law is named this, you may hear eviction cases described as a “Forcible” lawsuit or a “Forcible Entry and Detainer” lawsuit.
All Illinois evictions must be handled through the courts, and for you that almost always means the state courts (as opposed to the federal courts). The trial level courts in Illinois are called “Circuit Courts,” and that is where your Illinois eviction case will be heard.
Before you can file an Illinois eviction lawsuit, you need to have the right to evict. Typically, this means serving a notice to your tenant that you want to evict and waiting for the notice expire. For example, if you serve a Five Day Notice on Wednesday, Thursday is Day 1, Monday is Day 5, and Tuesday is the first day you can file your eviction suit.
There are some limited instances where you can commence an Illinois eviction action without serving an eviction notice. One of those instances is described below in “Scenario 4”
Scenario 1: My tenant owes me rent. What should I do?
If your tenant owes you rent, you need to serve him or her with a Five Day Notice. If your lease says that rent is due on the 1st day of the month and is considered to be late if not received by the 5th day, attempt to serve a Five Day Notice on the 6th day of every month that rent is late. This is an easy process, so I recommend you do this automatically as soon as rent is late, even if only by a day.
How to Serve an Illinois Landlord’s Five Day Notice
Here is a link to a pdf file for the form you need to use: Illinois Self-Help Landlord’s Five Day Notice.
Here’s what it looks like when you fill it out:
Step 1: Fill out the top half of the form. Leave the bottom half blank until you actually have served the tenant. Make a photocopy for every tenant named on the lease (typically, husband and wife). If the tenants’ children are named on the lease but you know that they are under the age of 18, there is no need to name them on the Illinois Landlord’s Five Day Notice.
Step 2: Serve one copy of the Five Day Notice to every single named tenant. That is to say that if there are four people named on your lease residing in the property and you want to evict all of them, you need to serve four copies of the Five Day Notice. How do you serve the Five Day Notice? You have three options:
- You can physically hand the Five Day Notices to anyone living in the property aged 13 or older. Anyone aged 18 or older can serve the Five Day Notice. You do not have to be a licensed process server to serve this document.
- You can serve it by certified or registered mail. You must request a return receipt. You must mail the Five Day Notice in a separate envelope to everyone named on the Five Day Notice. And, for service to be complete, your tenants have to actually sign the return receipt confirming delivery (most are smart enough not to do this).
- If and only if your tenants have completely abandoned the property, you can tape it to the door. If it turns out that your tenants still reside in the property, if you try to evict with a Five Day Notice that was taped to the door, your eviction case will be tossed out of court!
Step 3: Fill out the second half of the Illinois Landlord’s Five Day Notice Form reflecting the date you served the notices on and the manner in which they were served. So, for example, let’s assume you have two tenants whose names are “Husband” and “Wife.” If you served the Five Day Notices by handing them to Wife, you would fill out one copy of the form and select Option (1) on one copy indicating that you personally gave Wife’s Five Day Notice to Wife, and you would fill out a second copy of the form and select Option (2) for Husband, stating that you gave Husband’s copy to Wife.
If you serve your tenants with a Five Day Notice, do you have to evict them?
No, you are under no obligation to evict your tenants even if after five days expire they have not paid their back rent in full. Serving the Five Day Notice merely gives you the option to file an eviction lawsuit after it times out.
My tenant wants to make a payment of less than the full amount of rent due. Can I accept it?
Yes, but you should make it crystal clear to your tenant that you do not agree to waive your rights under the Five Day Notice to evict. If they pay even one cent more than the past-due rent amount, your Five Day Notice will be invalidated and you will have to re-serve a new notice in the future. This is typically a good thing because as a landlord, you want to be paid rent and you do not want to pay an attorney money to evict these people. Just know that once you accept one cent more than the Five Day Notice demands, you’ll have to start the process over again.
What if the tenant mails me a check after I serve the Five Day Notice for the next month’s rent and writes in the memo line of the check that this is for the next month’s rent. Can I cash it?
Probably not if you still want to evict your tenants. Accepting this payment would likely invalidate the Five Day Notice.
What if my tenants give me a check for the full amount demanded before the Five Day Notice expires. Can I refuse to accept it and evict them?
No. You must accept a valid tender of the amount demanded in the Five Day Notice. If you refuse payment and if your tenants can prove that you refused to accept payment, any eviction suit you filed based upon those circumstances will be thrown out of court.
If they have not paid me after the Five Day Notice expires, can I throw the tenants out on the street?
No! A Five Day Notice merely gives you the right to file an eviction lawsuit if your tenants have not paid in full within the time period set forth in the notice. If you attempt to evict your tenants without filing a lawsuit, obtaining an eviction order, and placing the eviction order with the County Sheriff for execution, your tenants will have the right to sue you for a lot of money. When in doubt, don’t do it.
Can I turn off the utilities for the property to try to force the tenants to move?
No. Again, this will give your tenants the right to sue you for a lot of money. Don’t do it.
Can I do something else creative to force them out like removing the front door of their unit?
No. Again, this will give your tenants the right to sue you for a lot of money. Don’t do it.
What can I do to evict my tenants?
Use the courts and County Sheriff. If you want to try to do it yourself, you have every right to file an eviction lawsuit without an attorney. That said, if the landlord is an LLC or Corporation (even if you are the only member of the LLC or shareholder of the Corporation), the judge will make you hire a lawyer. LLCs and Corporations can only prosecute lawsuits with a lawyer. In some instances they can defend lawsuits without a lawyer, but that is a question for a different day.
My lease entitles me to late fees and utility charges. Can I sue for them?
Yes, but not in the eviction case. Evictions are limited to two questions: (1) How much back rent they owe you, and (2) Whether you have a right to evict them. Late fees and utilities are generally not considered to be rent unless your lease specifically states that these items are included as “additional rent” for the month. Even if your lease states that late fees and utility charges are “additional rent,” most eviction judges that I have appeared before decline to award you a judgment for them in the eviction case.
If it makes sense for you to try to recover your late fees and utility charges, you have to file a separate lawsuit, typically in small claims.
Your late fees have to be reasonable. There is no hard and fast rule for how much of a late fee is reasonable, but most judges I have talked to would consider a one-time charge of $75.00 a month to be the upper limit of reasonable late fees. If your lease says that you are entitled to something crazy like $10.00 a day for every day that every payment is late, I can tell you with almost certainty that you will not be awarded those late fees by a judge.
Scenario 2: I do not have a written lease with my tenants, but we have an oral agreement to pay rent every month. They pay their rent in full every month, but I still want to get them out. How can I use an Illinois eviction to accomplish this?
If you do not have a written lease with your tenants that expires on a certain date in the future, you have what’s known as a “month-to-month” lease. Here is how you terminate that lease.
Do you have a proper reason for wanting these tenants to leave?
The first question you should as is whether you have an improper purpose for wanting to evict your tenants. You cannot evict your tenants for an improper purpose, for example, if you dislike the tenant’s sex, gender, age, disability, handicap, ethnicity, race, religion, national origin, familial status, or any other number of protected statuses. You cannot evict your tenant for refusing your sexual advances. You cannot evict your tenants to retaliate against them for reporting you to code enforcement officials for defects in the property.
The laws in this arena are complex, and I will not endeavor to describe who you can discriminate against and who you cannot discriminate against. Other than being mean, you can get sued, again, for a lot of money for doing it.
Two perfectly acceptable reasons for wanting to terminate a month-to-month tenancy are that you believe the property could be rented out to other people for more money or that you do not want the property to be a rental property any longer (e.g., if you want to sell it).
How do you go about getting rid of month-to-month tenants?
Serve your tenants with an Illinois Landlord’s Thirty-Day Notice. Here is a link to a pdf file for the form you need to use: Illinois Self-Help Landlord’s Thirty Day Notice.
The Thirty Day Notice looks a lot like the Five Day Notice discussed in depth above. You should fill out the top half, make a bunch of photocopies of the filled-out form (or scan and electronically save it), and serve it on your tenants in the manner described above. Then fill out the bottom half of the form in the manner described above.
Once the Thirty Day Notice has expired, if your tenants have not turned over possession of the premises, you have to file an eviction lawsuit and have the Sheriff evict them.
Why do I have to give the tenants until the last day of the next calendar month? That’s more than thirty days out.
There is a case out there that has held that Thirty Day Notices that attempt to terminate a month-to-month tenancy at any time other than the last day of a calendar month is defective. The theory behind this is that a month-to-month tenancy creates successive tenancies in the property for entire calendar months. If you have not validly terminated a month-to-month lease before the next month starts, they are entitled to stay for entire month.
To be frankly honest, I have not had to argue this issue in front of a judge because I tend to force my clients to do things correctly. I do not know what a judge would do with a Thirty Day Notice that attempts to terminate a month-to-month tenancy on any day other than the last day of a calendar month. My suspicion is that the judge would do one of three things:
- Not understand that this is invalid and let you evict;
- Understand that this is invalid, but only let you evict as of the last day of the month; or
- Declare that your Thirty Day Notice is invalid, throw your case out, and make you start over again.
To be safe, list the last day of the month as the date the month-to-month tenancy is terminated in the Thirty Day Notice.
Can I still accept rent after being serving a Thirty Day Notice?
Yes, you can accept rent for all months prior to the date set forth in the Thirty Day Notice that the tenancy will terminate. If you accept rent for the month after, your Thirty Day Notice is no longer valid, and you will have to start over again.
Scenario 3: I have terrible tenants that pay their rent in full and on time. Can I evict them?
Let’s suppose that your tenants have breached the terms of your lease with them by doing something they are not allowed to do under the terms of the lease. The most common examples of this are having dogs and cats in the property when the lease prohibits it, having unrelated adults move into the property with them (and be careful about this one–read the section above about discrimination against familial status), selling drugs out of the property, refusing to mow the lawn, or other issues.
Can you evict? Absolutely. You need to serve your tenants with an Illinois Landlord’s Ten Day Notice. Here’s a link to a pdf file of that form: Sample Illinois Landlord’s Ten Day Notice.
What if my tenants cure the issue? Can I still evict?
Yes, technically. There is no general right to cure a Ten Day Notice in Illinois. That said, if the issue causing you to serve the Ten Day Notice is minimal and caused no real harm to you (e.g., unmowed grass), you run the risk that the judge hearing an eviction case based upon the notice will find a reason to throw your case out.
Scenario 4: The lease was set to expire on a certain date, and my tenants are still in possession of the premises. What can I do?
Once a lease expires, you have the right to do one of three things: (1) stick the tenants with a new lease for the original term of the lease, (2) treat the tenants as month-to-month tenants, or (3) immediately evict them.
In scenarios (1) and (2), the monthly rent is what is called for in the lease. You cannot unilaterally decide that they have to pay more. Note well, however, that most well-drafted leases have a “holdover” provision in them calling for double rent if the tenant stays past the date the lease expires.
I want the tenants out. What can I do?
Assuming that you have not accepted rent for any months after the date that the lease expired, you can immediately file an eviction lawsuit without the need to serve a notice.
I made the mistake of accepting rent after the lease expired. What can I do?
By accepting rent after the lease expired, you created a month-to-month tenancy with your tenants on the terms of the original lease (same rent, same conditions, the only thing that changes is that the lease no longer has a set expiration date). If you want your tenants out and they are current with their rent, follow the Thirty Day Notice procedure set forth above in “Scenario 2.” If your tenants are late on their rent, follow the Five Day Notice procedure set forth above in “Scenario 1.” Don’t do both.
Should I hire an attorney?
That depends. A bad analogy I use when asked this question is that prosecuting an Illinois eviction is like trying to fix your car. If you are handy or desperate, you conceivably can do it yourself and save some money. You also could cause more problems and lose valuable time by doing it wrong.
Hiring an Illinois eviction attorney ensures that it gets done right as soon as possible. When a tenant stops paying you rent, you begin hemorrhaging money. Property taxes are insanely expensive, and the mortgage on the property can be sizable. If your combined obligation for taxes and mortgage on the rental unit is $2,000 a month, you are losing $67 dollars every day that you do not have a paying tenant in the property. That quickly adds up.
My office handles evictions primarily in McHenry County, Illinois. We charge a flat fee of $750 plus court costs and service of process costs to get you an eviction order. We also prosecute Illinois eviction cases in Boone County, Lake County, DuPage County, Kane County, and the Rolling Meadows Courthouse in Cook County for $900.00 plus costs to compensate us for the travel time to those locations. There are no hidden attorney fees, and you will never pay more than those flat fees for your Illinois eviction case in those locations.
We file most eviction cases the same day that a client places them with us if the client has properly served the notices described above. If you would rather we handle the notice process process, that service is included in the flat attorney fee.