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Can a landlord accept rent and then file for an eviction?

Berwyn, IL |

We attempted to pay our December rent with a personal check, which the landlord declined saying she wanted a money order. After much arguing and threatening us with a 5 day notice via text message, we gave her a money order for December, January, plus a late fee. This weekend we were served with a court summons for eviction from our landlord, dated for the day before we paid her the money order. Ill also add that the day after she filed the eviction papers, she was texting us asking us to pay her. Our lease is for a 2 bedroom apartment but the city has deemed the second bedroom illegal and a safety hazard and are now taking her to court. What are our rights? Can she go through with the eviction after accepting our money? My concern is an eviction on my record. We are going to be ordered to vacate by the city because of the illegality of the bedroom after her court date so leaving is not the problem.

Attorney Answers 1

  1. Whether your landlord can evict you is going to be determined by the term of your written lease. If you breach the lease agreement by failing to pay rent in a timely manner, the landlord can evict you and still accept your rent if the lease provides that failure to pay rent when due constitutes a default or breach under the lease. Leases I have personally prepared contain such language and also have a provision which specifically provides that the landlord does not waive his/her/its right to evict by accepting rent after the due date. Look to the lease. If the lease is an oral lease, then you could argue that the landlord waived her right to evict you by accepting not only the rent, but also the late fee. You could argue the late fee is intended to make the landlord whole for your failure to pay rent when it was due and that the late fee, if accepted, is the exclusive remedy available to the landlord. If you are wanting to avoid having the eviction, I would attempt to negotiate a dismissal of the eviction complaint in exchange for your promise to move on a prompt date without the necessity of a court order. 7-14 days is reasonable under most circumstances.

    This response is being provided for information purposes only and does not constitute an attorney client relationship. Furthermore, I am only licensed to practice law in the State of Illinois. While there are oftentimes similarities between States' laws, there can also be large differences. You should not rely on this response as legal advice and are highly encouraged to speak to an attorney licensed in your State for an accurate legal answer.