How to Evict a Tenant for Nonpayment of Rent
Illinois Forcible Entry and Detainer Act, 735 ILCS 5/9-101. The Chicago Landlord Tenant Ordinance (CLTO) covers evictions in the City of Chicago. The CLTO is not covered by this legal guide.
When Can a Landlord File an Eviction Action to Recover RentA landlord can bring an action to recover rent when:
It is due and in arrears.
The property is possessed without any agreement regarding rent.
After a written demand for rent.
After the property has been sold pursuant to a court judgment, and the debtor refuses to surrender possession.
A mortgaged property is sold, and the mortgagor refuses to surrender possession after written demand.
The First StepThe Five Day Notice
If a tenant has not paid rent, the landlord needs to make a formal demand prior to filing a forcible entry and detainer action.
This demand is called a Five Day Notice.
Any time after rent is due, landlord can demand payment and notify the tenant in writing that unless payment is made not less than five days after service of the Five Day Notice:
The lease will be terminated; OR
Landlord will file an action for forcible entry and detainer.
Five Day Notice RequirementsMust be in writing
Must be served on the tenant OR
on a person 13 years of age or older who lives on the premises OR
by mailing to the tenant via certified or registered mail with return receipt.
If no one is living on the property, notice by posting is acceptable.
What if the Tenant Makes a Partial Rent Payment?If tenant pays less than the amount demanded in the five day notice, this does not invalidate the five day notice.
Going to CourtComplaint MUST:
State that plaintiff is entitled to possession
Describe premises with reasonable certainty, at least a street address
Name defendant who is wrongfully withholding possession
Identify all demands or notices required to be served and their manner of service, which must be proven at trial.
An answer is NOT required if the defendant appears, unless ordered by the court.
Included with the complaint should be the following exhibits:
Five Day Notice
What the Landlord Must Do To Win In CourtLandlord must prove:
Lease ended on its own terms or by proper written notice
Landlord has a right to possession
Tenant violated the lease or stayed in the apartment after the lease ended
There is rent due
Suit is properly filed
Rental or use value of the property after the lease was terminated
How Does A Trial Work?Landlord should be prepared to prove each and every allegation in the complaint.
Witnesses testify concerning:
the terms and provisions of the lease agreement, specifically regarding the amount of rent that is due and owing.
the rental value of the premises, and that of comparable premises in the surrounding area.
Expert witnesses testify concerning:
details of a commercial lease (complex terminology, building design).
damage to the property caused by the tenant.
the lease agreement
writings between the parties
title documents (deed)
notices (five day notice)
What if the Tenant Wants a Jury Trial?Either party may demand a jury trial EVEN IF a party waived the right to a jury in the lease.
735 ILCS 5/9-108
Defendants tend to request jury trials in order to delay the proceedings, and because juries tend to be more sympathetic to them.
If the defendant asks for a jury trial and then fails to appear, the trial can proceed ex parte, and can be tried by the court WITHOUT a jury.
735 ILCS 5/9-109
Final JudgmentIf plaintiff prevails, a judgment for possession and costs is entered in his favor including:
a description of the premises.
the amount of rent due.
StayIf the defendant is willing to cure the default under the contract, a stay may be entered for a certain period of time.
If the defendant cures the default, he can file a motion to vacate the judgment.
If the defendant does not cure the default in the period of time granted in the stay, the enforcement of the judgment can proceed immediately, and all rights of the defendant in and to the property will be terminated.
For More InformationFor more information on Evictions Actions, please contact the Law Office of Swati S. Desai, 250 Parkway Drive, Suite 150, Lincolnshire, Illinois 60069, Phone: 847-984-0638, Email: [email protected]