“Eviction For Non-Payment of Rent” – KSN attorney Julie Jacobson discusses the process an Illinois landlord must follow in order to evict a tenant for non-payment of rent. She also reviews how COVID-19 has impacted the eviction process. (50 mins.)
The KSN Podcast examines various aspects of association law, landlord/tenant issues, property tax appeals, and more.
In each episode, KSN attorneys share their experience and knowledge as they discuss legal updates, best practices, industry trends, and more.
KSN Podcast episodes are available here: www.ksnlaw.com/podcast
Subscribe to the KSN Podcast where podcasts are found including:
Since 1983, KSN has been a legal resource for condominium, homeowner, and townhome associations. Additionally, we represent clients in real estate transactions, collections, landlord/tenant issues, and property tax appeals. We represent thousands of clients and community associations throughout the US with offices in several states including Florida, Illinois, Indiana, and Wisconsin.
For more info about our law firm and legal services, please visit www.ksnlaw.com.
Nikki: You are listening to the KSN podcast and today we’re talking about evictions due to nonpayment of rent. Welcome to the KSN podcast where you’ll hear from KSN attorneys as they share their experience and insight on legal issues surrounding community associations, collections, property tax appeals, and landlord tenant law. I’m Nikki and today we’re joined by KSN attorney Julie Jacobson. Julie practices landlord tenant law, as well as condominium, townhome and homeowner association law and has a background as a litigator. Please note that this is a previous webinar held on February 17th, 2022.
Julie: I have been working for this firm for 21 years and in those 21 years, the major part of my job is evictions. That being said, I do evictions for every type of eviction, from homeowners to landlords to commercial properties. I also do evictions that are not just for nonpayment of rent, which is going to be the thrust of this presentation, but for quarters, for cause, for month to month, holdovers. Anything that you can think of, I handle those evictions as well. Our firm handles it throughout Illinois. I personally handle Lake, McHenry, DuPage, parts of Cook and I’m back up for the other parts of Cook and back up for Kendall and Kane. We do Oswego. We do DeKalb. I just want you to know there really isn’t a property in the Chicago land, or even further out in the Chicagoland area that we don’t do this. This is a lot of our work. We do have a staff and we have about seven attorneys in this department. So if you need anything, as far as legal work, looking at your leases, tax appeals, anything like that, I want you to make sure you reach out to us. All right. The title of this is evictions for non-payment of rent. I want everybody to understand is that there are lots of ways to evict someone and back in the day, pre COVID and I’m going to give you all the highlights when COVID has changed certain things the easiest, the fastest, and the quickest way to remove a tenant is when they don’t pay rent and we do a five day notice for rent.
Now, you may have a tenant, who’s a bad guy, who’s playing music loud, destroying property and doing all that and that’s why you want to evict them but the good news is if they’re not paying rent, usually those same people don’t pay rent you can get them out faster with a five day without a lot of crazy legal stuff and a lot of legal maneuvering, procedural, trials, all that stuff. We can talk about that as I go along. So don’t get wrapped up that your tenant is a bad person and he’s not a good tenant and you had you known, you wouldn’t have granted him. If they’re not paying rent that’s going to be the thrust again of this conversation. Things have changed a bit because of COVID. So it’s not the slam dunk it used to be, but it’s still generally the best advice if you can, if the tenant’s not paying, even though they have other issues, their least expired or whatever, to go ahead and do the five day. The worst case scenario is that they pay you in full within five days and now you have money to actually do the crazy eviction stuff that costs a little bit more money and time to do, and you keep them on their toes.
So, I just want you to keep that in all of your issues. If you are right now, an investor and you haven’t yet even rented out a place, this is a very good presentation, so you know all the things that can or will go wrong. Or if you already have tenants, that’s good too and you probably hit a wall with a tenant in the past and if you haven’t, that’s great. I usually just get to hear the bad stuff, but I just want you guys to just stay calm and go through the whole step with me and time is of essence is more prevalent today than ever. If you were a landlord, you may wait a month, someone misses, they said they lost their job, or they needed to pay their kids’ child support or whatever it is and you kind of want to cut them a break– I’m not saying you can’t cut them a break, but at least get the ball started because things are taking much longer than they did before and eviction cases are supposed to be expedited, however, because of the shutdown on evictions for almost two years, courts are backlogged, they’re at capacity and sheriffs are very full. We are moving very quickly as we can and I’ll talk about specific issues as we go along.
So, the first thing is to know is back in the day, there was a fancy word for eviction and back in the day, I mean like a year and a half ago, this changed, it used to be called the forcible entry and detainer statute, but it’s now called the eviction statute, which I’m glad they changed it cause that’s a mouthful and most people are like, what are you talking about? Most of it has stayed the same. So other than the fancy name, it’s now still the eviction. Again, I’m reiterating that we’re going to be talking about non-payment of rent today. However, I do want to point out something; you can evict someone for cause, a holdover attendant, a person who doesn’t have a lease, a month to month tenant. I try to get my landlords to stop using the word trespasser or squatter. Those are the most rare type situations and I’m going to give you a quick example and you can apply it to a whole bunch of different scenarios. So let’s say you’re renting to a grandmother and she lets her grandson, a teenager move in who’s 17, 18, who knows. Unfortunately, grandma passed away and the teenager stayed and they’re not paying rent. That is not a squatter. That is not a trespasser.
If that person was invited by someone with possessory rights at some point, they are now entitled to possessory rights and you have to go through the entire legal system. Now, I’m telling you legally you cannot bypass that but if you think you can, like you think you’re going to turn off water or do all these other things to someone you could be liable for a wrongful eviction and the consequences of a wrongful eviction are, and especially if you’re in Cook County or Chicago, they’re even more state because you’ve going to pay a lot in legal fees cause there are lawyers looking for landlords to make these mistakes. So I just want you to know, everybody wants to know what’s the fastest way to get someone out. I have to tell you legally the way to do it. So don’t get caught up with, “Well that person, I never put them on the leave, I didn’t know that she invited her boyfriend in there and his best friend now moved in and now everybody who I had on the lease has gone.” If anybody was invited in and stayed, they’re part of the non-squatter, non-trespasser world and I would say in my 20 years, I’ve had five official squatters that they physically walk by a building and walk in and start living there. I estimate I probably have filed over 20,000 evictions in my 20 years and five of them are squatters. Recently, I did have a client just this past week where it could have been deemed a squatter and I would’ve tried it, but I told her there was no guarantee the court would’ve seen it as a squatter because it was the children of a parent but we didn’t know about the children until after the parents died, et cetera, et cetera. But luckily they moved out.
The next part is an oral or a written lease; the starting point. So one thing I tell all my new landlords, you might be thinking you could just Google and get a great lease. The problem with that is there are certain provisions in certain counties that are fantastic. Outside of Cook County and outside of Chicago, if you have properties and you’re just Googling and just grabbing a lease, spend the half hour with your attorney or with whomever and say, give me those couple of provisions that are very helpful, will save you a lot of time and money. Now, if you want to rewrite your entire lease, it’s not a half an hour obviously, but there are some really key points. Chicago and Cook– I distinguish Chicago from Cook County. Chicago has its own RLTO residential landlord tenants ordinance and now Cook County as of June 1st has a Cook County tenant landlord ordinance. Kind of silly, they switched that around, but there’s more restrictions in them. So even if you try to lease around certain issues like you can in the Collar Counties, those ordinances will trump your lease. I would still want to put certain things in those leases, but if you have a Chicago property or anything in Cook County you really need to talk to an attorney before you sign someone up, just so that you can know they’re are so many rules in so many what places that other attorneys that like to catch you, they get the, I got you kind of moment and then the landlord’s like, “Wait a second. Why am I paying for all this? What happened?”
So I can’t get into that today but if that applies to you, you have a Chicago property or Cook County property, please fill out that lamp because you really need a checklist and go through it. If you have a lot of properties outside of Chicago and Cook County, great for you, but let’s get that lease updated. If you don’t have a lease, you should really have a lease. If your lease has expired, you really should have a lease. I know a lot of people like the month the month, cause you can always give them a month to month notice. We can get into that a little later, but get a lease. We can always put an early termination clause in the lease if you want a 30 day out. In Illinois, the law says, if you are not paying your rent and the landlord gives you a five day written notice, if the tenant does not pay in full, the landlord may file an eviction lawsuit. So, before you can even go to court, before you can give it to the sheriff, before you can do anything, you have to give a notice and the notice is five days. Now, I say that and then I have this pause, except in certain circumstances. One of the circumstances if you do have a lease, it may say something different. If it has more than five days, you have to follow the lease and I had this happen to me just two weeks ago where it was a seven day notice requirement. So, you have to do seven days. Some have 10 days.
So again, another reason to look at your lease and not just to Google some lease that you find online cause it looks pretty good. The other time there are villages and counties that require longer. Now off the top of my head, I believe it’s Evanston, but they require a 10 day minimum. If your lease says three days or no notice, that provision in the lease will not work. The minimum is five days in Illinois or longer. Now are you ready, guys? This is a COVID highlight. COVID highlight. Announcement! Announcement! If the property you own has a mortgage and the mortgage is held through a federally backed mortgage, Fannie Mae, Freddie Mac, there’s all sorts. There’s more than just those two, but they pick up about 80% of those types of mortgages, you can no longer use a five day. This is a federal law now. It’s not the state law. You must do a 30 day notice for non-payment of rent. I’m going to say that again; if you have a property that is backed by a federally backed mortgage loan, you cannot use a five day, you must use a 30 day. If you’re not sure if you have a mortgage or you’re not sure who’s holding it, call your comp– You know, Chase will hold a Freddie Mac or a Fannie Mae. So just because you have a big bank, doesn’t mean it’s not a federally held loan. So you need to find that out. And again, you have trolling attorneys looking to get you in these situations. So you don’t want to mess that up.
The next part about that is; this is somewhat good news if you have a 30 day notice and you’re federally back, when you do a month to month, and I know I’m not getting into month to month, but if you are a month to month and they’re paying their rents, but you still want your property back and you have to do a 30 day notice. That’s what a month to month termination notice is, it’s a 30 day, it’s not an actual 30 day. It’s a calendar 30 day. Meaning if today you served your tenant a 30 day notice for a month to month eviction, you cannot start counting until March 1st and you can’t file an eviction complaint with the courts until April 1st. That sounds crazy, I know. So even if you were to serve someone, let’s say March 1st with a 30 day month to month termination, you have to wait through the whole calendar month of April because you didn’t serve it. You have to give them the full month. So that’s crazy. This is another reason why I say the five days is the way to go. Again, if you have a federally backed mortgage and you have to use the CARES act, notice it’s the actual days. So that’s actually better than your normal 30 day. So the 30 day starts today. It’s the 17th, 30 days. It’s not a leap year, so it would expire on the 19th of March and then you could file it the first open court date that you have and I’m looking at my calendar. In that situation, it would be March 21st, which is Monday morning.
Going back to the five day and what most of this conversation’s going to be about. Let’s say you served today, the five day on your tenant. Today is the 17th. You would not count today. You would start counting on the 18th, the 19th, the 20, 21st and 22nd and then you can file your lawsuit on the 23rd. You conclude the holiday and the weekends in that five days. Now, if your tenant typically mails you a payment versus hands you a payment or have a lock box or whatever, I always suggest people wait two or three days after that last day cause if it shows up in the mail and it was during the mail time, you you’re going to have a hard time explaining to the judge why you filed it so quickly. Just want you to have that in mind. So, we’ll get more depth about payments within five days. With that your landlord’s notice for unpaid rent.
Again, don’t Google this, please do not use old paperwork but if you are going to Google it, double check it and this is the notice, this has nothing to do with the complaint. This is the first step. The name and the address of the tenant. Look at your lease. Do you have more than one person named as an occupant on that lease, add them on there. You should also always include all unknown occupants, cause you don’t know who might be living there and you want to add that. That’s a very important piece. Make sure you put the past due amounts, but make sure it’s only rent. Do not put the late fees. Do not put other charges unless your lease provides it. And what do I mean by that? Your lease would have to say the tenant is responsible for the gas and electric comma as additional rents. So anything that you want extra, you always need to put in there comma as additional rents. Otherwise that’s not considered rent and then you can’t put it on the five day. Again, another reason to get a lease reviewed, always demand possession, give them the time to pay. My little trick is I don’t put a date on there. So let’s say I’m going to go out to Sally Smith to give her a five day. She’s not home, but I said five days from today that she has to pay and I actually wrote the 22nd or whatever on there and I don’t get her served until the 18th. Well, now it’s messed up. So I always say from the date of service of this note.
So the five days can start tolling whenever you actually get it served and you’re not messing up with the timeline. There’s a statutory language that Illinois requires talks about sheds and back lots and all kinds of nonsense. That’s why you don’t want to use something off the internet cause it could be another state’s statutory language, you need Illinois. And then of course you have to sign and date it. So now that you have the notice, now you go out to serve it. Now, you as the landlord can go ahead and serve it. You can have anyone you want serve it as long as it’s someone you feel comfortable that can testify in court and can be deemed your agent. So, maybe your wife or your husband’s the bookkeeper or you have a son working at the company. They can all serve it, a janitor, anyone like that can serve it but keep in mind that down the line, there might be an issue in court. It has to be someone you feel comfortable that could speak before the court and as to time and date and place where they hand it to the tenant. You can also pay to have a process server do it. They’re sometimes fantastic because then they fill out affidavits and there’s usually less challenge and they usually have a camera on. They usually have all kinds of proof of serving it and then you don’t have to fight with that in court too much. But again, it’s usually somewhere between 50 and a hundred dollars depending on that process server.
If you need somebody, please email me. So here’s another thing. This one’s tricky again. So, they just told you that grandma lets the son move in or the grandson and then he dies, but he has accessory rights. Here’s the thing, if you go to serve that five day and that girlfriend you see there all the time, she may not be a resident or an occupant of that premises, unless she’s literally on the lease or you got something in writing that says she’s part of it, the courts are always going to look in the favor of the tenant in this situation. So don’t hand it to the cleaning lady that’s there every weekend or the mother-in-law who watches the baby all week. All of those people are not going to be suited to get that. It has to be someone listed on the lease and they have to be 13 years of age or older. So if you know a single mom who lives with her 17 year old son, her 17 year old son is fine. It’s just like maybe when grandma comes to stay for a week or two, that is not okay. Fill out the service completely.
Let me tell you, this is so important. I see so many cases getting dismissed just because the return of service is not properly completed. I know when you Google, you can get ones that have for a notary, that is just so antiquated. There is a verification page that’s easier, it’s cleaner, it’s better for the courts, less to mess up. If you want to go the notarized way, that’s great. You’re going to find far and few notaries these days and when you do, they’re offices are not going to be open. Even in our firm, we’re down to maybe five notaries out of a hundred staff. So that’s kind of the way of the past, but to each his own. I’m going to come to a really, really big one and I really, really need you guys to notice the difference between Chicago and everywhere else. Notice it and I’m going to give you the exceptions in a minute, but I’m going to make this a strong, strong issue, never post your notices. I don’t care if the tenant doesn’t answer the door, I don’t care. That’s when you hire the process server. I don’t care, do not post it.
Now, here’s the big exception, and this is why you need me, or you need an attorney to look at your lease; there is a provision outside of Chicago that allows you to post notices, but it has to be put in a written lease that’s not expired, that’s signed by the tenant and it allows you to do a posting under certain circumstance. That little provision will save you so much money and time and effort, but don’t get it twisted, Chicago will never allow that. And what is the penalty? It’s bad notice, you can’t move forward and if you do, the case is going to get dismissed. So I just want you guys to know this is a very important– I mean, this is really– I know you didn’t pay for this presentation, but this is worth the payment of this presentation is that little piece of information. Again, properties in Chicago, fill out the lamp form. Chicago has its own set of rules, and that is sometimes a two day seminar that we give in our firm. So just keep that in mind.
Now, we haven’t even got to the courthouse yet. Now the five days is up and we’re now tolling. We count the full five days. Do not file on the fifth day. What happens? This is something that nobody believes, but I’m going to tell you, even if the defendant doesn’t show up to court, they’ll look at the five days, they’ll count the five days, they’ll see the day you filed it and if you did it prematurely, they’re going to dismiss the case regardless if the tenant shows up and says the five day was wrong. So there are certain things that the courts will do automatically because they don’t have proper jurisdiction. That’s a fancy word, but that’s what it comes down to and the courts don’t want to have that blow up in their face down the road by some other lawyer that comes in on a motion that says service was bad of the notice. I’m just letting you know, you don’t want to risk it. It’s better to give it a couple extra days than pulling the trigger too soon. This is the other big tip of the day, if you’re not going to listen to anything else, please listen to this, because this is the most pragmatic thing that I can do for a landlord is by telling you this.
If you serve a five day and I’m making up this number, I don’t know what your rents are, but I’m making the number for math, but let’s say you are not paid your rent and it’s a thousand dollars on the five day and on the fourth day, they pay you 2, 3, 5, 7, $800 of that thousand, don’t reject it. Say, let me give you a receipt and then your receipt will be a new five day for the new amount owed. The only thing you did here is toll that five more days, big deal. You got some more money in your hand and I know it feels like a cat and mouse game, but in the end, the tenant will know you’re not messing around and two you’ll have some money in your hand and three, there won’t be any confusion if you go to court and then he says, well, I try to give him money and he wouldn’t take it. Now, do I under this circumstance would say $50? No, a hundred dollars, probably not. But when it starts getting up there, you have to make that business decision. If five more days are worth 200 bucks or whatever the numbers are.
I’m not telling you what the number is. It’s going to be your gut but if you take any money in the five days other than the full amount, you have to get a new five day. You can’t just go ahead and start moving along as if I don’t care what the statutory language says that says only full payment will negate this notice. That’s not true. That is not true. That is not true in any courthouse. So please, if you’re going to take money, serve a new notice, serve it right then with a receipt. If they mail it in or whatever, call them up and say, Hey, I have to give you a receipt per my attorney. They’ll meet you. They love having a receipt. So that is a huge tip. I’m going to underscore that about five times.
The other option is you reject money if it’s not payment in full and you give it back to them, you may never see it again and then you’re going to get to court and they’re going to say, judge, we try to pay him. Now, the judge is going to say, well, how much did you try to pay him? But then it becomes a trial and now you’re paying more in legal fees. So I’m just trying to avoid a headache for you as a landlord. So the five days come and go, they don’t make a rent– Oh, and by the way, on the seventh day, this is something, they come and pay in full, that’s your decision as a landlord. Would you rather have the money and do this every month? Or do you want to reject the money, go to court and have a trial? [Inaudible:25:42] The 7th or the 10th day, take the money and just be prepared that every month you’re going to be doing a five day and make sure you have a non-renewable of the lease and get rid of them as soon as they can get out legally. That’s just my take on it but a lot of people just don’t want to deal with that every month, but being part of a landlord, this is the kind of stuff you’re going to deal with, especially now. I won’t get into my own personal soapbox. I will try not to do that.
So now you can yourself file a complaint with the court, or you can have an attorney do it for you. The first thing is– This is very, very sparse as far as information. You need to know where you have to file the complaint. So, if you’re in Cook County, but not in Chicago, you better know your venue. There’s Maywood, Bridgeview, Skokie, Rolling Meadows and Marco, and you better file it in the right courthouse. Otherwise, your case will be dismissed. If you’re in Chicago, it’s [Inaudible:26:42] center. If you do end up finding out where you’re supposed to file it, and you’re going to file it yourself, generally, depending on the county and whatever, and how many people you need served and all this stuff and how much the money in back rent are, it’s going to depend on how much it’s going to cost to file it. The actual cost out of pocket to the county itself, it generally ranges somewhere around $300, depending. It could be more, it could be a little less. And then again, if you’re in Cook County or Chicago alert your ears to this, this is important, you have to use the sheriff to serve that complaint.
The first time, you have to, and if they don’t serve it, which they likely won’t because they get paid regardless, you then have to go to court and ask the court for a private investigator to serve it on your behalf. And you should know who the process server is and you have to fill out a proper form and a proper motion for that. Any other county, you can just go straight to a process server without special permission. I won’t get into the law and why that is, but it is what it is and you got to stick to that one. The other thing, make sure you have the name, the address, make sure the unit’s on there, that’s very important on the complaint. If your lawyer isn’t doing this or you’re not doing it, but when you file that complaint, you don’t ask for all subsequent accruing run in charges, when you get to court, sometimes the sheriff doesn’t serve it the first time or the process server and another month is gone by, unless you put that wording in there, you are not getting that money. So wording your complaint is very important. These judges will look at it limited in scope. So keep that in mind and then of course always make sure you have a count or a claim for possession. If you don’t put it in there, all you’re doing is a small claim and you’re getting a breach of contract. Again, good reason to hire an attorney the first couple times out so you learn it and maybe you can do it after that, but it’s an expensive thing to learn along the way.
Now, I’m going to talk about something called summons. We’ve been talking about notice all the way up until the filing of the complaint. The notice is very different than this summon. The notice is what gives you jurisdiction and alerts the tenant that you’re going to be moving forward with an eviction lawsuit. Once you get to the eviction lawsuit, now you have a summons and as I said before in Cook County including Chicago, the sheriff must go out the first time to attempt that service and they get paid regardless. And depending on how many people there are, it could be a few hundred dollars but you have to get permission from a Cook County judge after the sheriff has already attempted once to serve through a process server. I do want to point this out, this has happened to me, it’s happened to a lot of people. Let’s say you have a boyfriend and girlfriend on a lease or a husband and wife or whatever, two people on a lease and they get in a fight or they break up or something happens and one of them moves out, moves into a cook county suburb. You’ve got a lake county lease, I’m just using this as an example, but you want that judgment from both the people on the lease. You might be getting possession from the person who stayed in the lake county property, but you still have to serve the person who now lives in Palatine.
Again, you are going to have to get special permission from the lake county judge to use a process server to serve the Cook County resident after you’ve already used the sheriff in Cook County. Now don’t get me wrong, the Cook County sheriff sometimes serves, but the ratio is not that great. And a fancy word for a second summons, if they don’t get served the first time, is called an alias. You might hear that a lot, I need to get an alias, get a lawyer. We’re getting continued for an alias. You hear that all the time. It just means that nobody got served and they just have to get a new court date and get a new alias, meaning another summons to try to get them served. Here’s something, the landlord cannot serve the summons, the landlord’s bookkeeper cannot serve the summons, the landlord’s janitor cannot serve the summons. It must be a licensed professional or the sheriff of that county. So unlike notice where we don’t bring in the sheriff and you can serve it as a landlord or your agent thereof, you have to have the sheriff or a licensed professional serving the process. That’s another fancy word. There’s process, alias, summons. They’re all the same thing, but they’re certainly not notices and I’m hoping that is clear because I told you in your complaint, you’re going to make account for possession.
You also have account for money, meaning you’re going to the judge and you’re saying, judge, please, can I have my money, judge, please, can I have my possession back? Because you have a two count complaint, sometimes after you’ve done the notice and maybe your tenant is skedaddle or they have stuff in the unit, but you don’t think they’re living there, there’s two different ways this can go. One, you can get them personally served in persona. That’s a very Latin word, it’s good for jeopardy. You can get that money judgment as well as the possession. Again, you have to use the cook county first, then the process server, you guys cannot serve the summons. The pros of personal service; you get the money judgment and the possession. The cons is there’s a lot more time to get someone served because some people really know how to evade the sheriff and or a process server. I personally, for my landlord cases, outside of Chicago, I asked my process server to take six attempts, different days, different times so that if we don’t get that tenant served, the next time we are up in court, I ask the judge, not only do I get an alias summons so we can try to get some money out of them but I also ask for a posting and a posting is not like a posting the notice on the door.
This has nothing to do what I was saying about the lease and the notice, that was all done. Close that chapter. This is now about the summons. There’s a way if the judge allows you to, you can post using the sheriff, it doesn’t matter what county, it has to be the sheriff, and they post it on three conspicuous places in the county and people walk by the library or the Sheriff’s office. It’s kind of antiquated, but at the same time, that’s the rule. What’s the pros and cons. Well, the pro is you get possession back. Remember I said, Hey judge, I want to have possession of my property. The con is you won’t get a personal judge wrong with the tenants. A lot of landlords don’t care. They just want their possession back. So certainly keep that as a backup plan.
All right, so now we finally got serviced. The complaint has been filed. You did the proper notice. Now we go to court. Yay. That’s why you hire me because I go to court on several of these a day and the landlord wouldn’t need to appear the first time. They may never need to appear, but the first time up, you don’t need to appear. If you have a good relationship with your attorney, you know what you’re authorized to do, or they’re authorized to do, they try to work on an agreement or get the judge to rule on it right then. I know that every single landlord who’s had to go to court gets so frustrated when something gets continued either for an alias, or did you tell the judge he’s the worst tenant ever; He screams at my wife, he does drugs. Listen, the judge doesn’t have a lot of time to be listening to every story. So on the first court date, we try to just resolve it, we don’t need to get into the mix of it. If we have to get into a mix of it, we have to set a trial date and that’s when you get to tell your story. Don’t get upset with your lawyer because he hasn’t told the judge all– These judges are hearing hundreds of these. Well, some judges, depends on who it is. Some of them are hearing these hundreds a day. Some are hearing hundreds of them a week.
So they’re not going to remember your particular case or they’re not going to think you have it worse than anyone else. I can promise you I’ve had cases, what people have done to their home is imaginable, they’re made for movies. We’ve had people with semiautomatic guns and we’ve had 60 cars in a lot in a cul-de-sac. We’ve had, oh my gosh, I’ve had hoarders who’ve defecated in a bathtub for three years cause they didn’t have electricity. I mean, the level of what I’ve seen and the rats and the roaches and the things that tenants have allowed. Look, the judges have seen it all. I’ve seen it. So, I mean, I still get shocked and I’m glad I still get shocked, but don’t think your case is so special and you have the worst tenant because I promise you, I can outdo you. That doesn’t mean I want to keep them there for you. I’m just saying you have to be realistic in the timeline, especially now.
Now, if it is a dispute, if the tenant is saying, I paid him, I tried to pay him, I didn’t get my notice. All of those kinds of things or my landlord’s bad, he doesn’t fix my toilet or whatever it is, it will go to trial and we will need a landlord or the landlords agent who has familiarity with the records and whatever it is to appear for court. Typically in my cases because I’m lucky, I’m not in the Collar Counties, I can usually get a trial within two to four weeks after the first court date. Cook County is not as fast and Chicago is even less fast or even slower, probably a better way to say it. Two usual paths. Okay usually the tenant doesn’t show up to court and we get an automatic win. That’s always fantastic, right? And if we get an automatic win and the judge now gives them still another seven to 14 days, depending on the kind of notice and the time like now with COVID it depends on your judge. Some judges are giving out 21 days for no real legal reason other than they feel bad sorry to tell you that, or a tenant may show up and your lawyer already knows what you’re authorized to do. You can make an agreed order, get them out, figure that out and then finally, if the tenant disputes you go to trial.
Now, if you go to trial, be prepared for your lawyer to ask you for certain things. They’re going to want records. If you are not keeping records, get off this phone call today and make records for everyone of your tenants. What should be in that record? A lease, even if they’ve expired, get a lease. You should have a ledger, meaning it’s January 2022, they paid rent, you put down the month, what the rent is, what they paid, zero balance. February 2022, they didn’t pay rent, a thousand dollars, balance is a thousand dollars. That’s all it is. Doesn’t have to be in Excel. It doesn’t have to be a fancy spreadsheet. It can be on a notebook, but as long as you keep it for each one of your tenants and you don’t commingle your tenants funds with other tenants or with your own personal stuff, great.
Notices, remember we talked about the notice almost this whole conversation. Make sure if you send a notice, don’t be sending double notices though. Just because they don’t pay in February and you haven’t started the case until March doesn’t mean you have to serve another notice in March, unless they paid in February. Go back to your notice notes or call me or call someone and then any communication, especially if they’re going to say that you’ve been a bad landlord and their septic backed up or something happened and you never fixed it but in fact, you went right out there and fixed it, make sure you have that because that may come into play if that’s their defense and you never know what they’re going to pop up with. Defenses for non-payment of rent, they’re going to say you can’t live there, it’s uninhabitable. They didn’t get their repairs done. They make a partial payment. They paid in full within the five days or tried to pay. There’s going to be these issues. If you keep good records, you talk to your attorney or come in and look at what the judge is saying on these kinds of issues, you will know how to protect yourself.
I’m going to stop here. There was a pre-submitted question that was asking is there a way to block an eviction? Oh yes. Listen, if someone tried to evict me today, I could probably block it for a year. These are some of the big trip up for our landlords and yes, they can come in, they can file all kinds of pretrial, pre-motion or prejudgment motions and there’s so much that I couldn’t even expand on it right now cause it would go on forever. So yes, can people block evictions? Yes and that’s what I meant in the court. If you’re asking for an actual eviction, when the sheriff comes out. No, I mean, unless there’s some other social work issue that we can talk about at a different time, especially in Cook and Chicago, they have some other ways to stop it on the day of the eviction, but let’s not go down that rabbit hole. I should tell you. Alert! Alert! This is the COVID 19 alert, there are judges and I have one in particular who is making every landlord case go to mediation and [Inaudible:40:24]. You have the proper notice. You’ve got the summons. Your complaint is drafted correctly. Everything is right. This judge is automatically continuing the matter for 30 days. So you can do mediation to see if you can work it out. And he also requires you to participate in the rental relief and I know there were a lot of pre-submitted questions about the rental relief, but I will tell you in this courthouse, if you don’t participate, the judge will dismiss the case.
Now, I’ve only heard this with one judge so far, but not making a lot of landlords happy right now, just so you know. I also have judges who let you file for rental relief and still give you possession in seven days, so it’s a mixed bag. It depends on the judge, depends on the county. I have to tell you of two judges in DuPage. I’ve only had this issue in front of one of them. I haven’t had it in the other so I can’t say for every judge what they do, but our firm steps up in front of every county judge at the east once a week. So we know these judges pretty well and their little rules or their little habits or whatever they’re making you do. Keep that in mind. If you do hire an attorney that doesn’t do landlord work all the time, find out how often they go to the courthouse. How often do they know that judge? And if they tell you they’re going once every three months, they don’t know that judge. You’ve got to have someone who goes in front of a judge at least once a month, at least, especially in these kinds of cases, because these judges are changing every day and they have new rules.
So, then the judge listens to your trial or does the default. He says, okay, tenant, you have until such and such date to move out. That’s fancy word for that is the stay date. You cannot do anything. You cannot go into the unit. You can’t go do anything until the stay date is over and you can’t go and do anything until the sheriff comes out, unless, and you guys got to hear this, the big announcement, the tenant gives you keys back and voluntarily gives you back possession. That is the only way outside of a sheriff to give you your property back. People are going to blow their mind. What do you mean? What do you mean? Now, I know there are certain cases like in Chicago of people abandoning their property and there really isn’t anything left or someone died and there’s nothing inside of it. We can always go down the abandonment route. That is very specific, and we have to make sure that you check every box before you go down that route. Otherwise, you’re going to have what they call a wrongful eviction and you’re going to get sued and not only you’re going to get sued, you’re going to have trouble damages on the rent and they’re sue you for the 12 plasma TVs and the diamond rings and all the other things that they had in the unit that you’re not going to be able to not prove.
So trust me because if it does happen to you, you’re going to call me up and say, I should have listened to you. You also get a money judgment if you have personal service. You can get attorney fees outside of Cook and Chicago if it’s in your lease; you can also get other charges if your lease is properly drafted. Not saying every time, but yes and I actually put in the provision that you want to make sure you have in your leases non-Cook, non-Chicago. So I hope that helps. And here’s the thing, if you have a non-Chicago, non-Cook, handwrite or cut and paste this into your lease and then go have your tenant sign or initial it so you have it for the future. It’s really important because if you have to hire an attorney, the last thing you want is $2,000 later and you can’t get that two grand back and I’m not saying I’m $2,000, I’m just saying to go to trial; flat rates you guys, flat rates and court costs. So then once the order, the stay, the deadline, whatever is done, you can then go to the clerk, get their writ, which is basically the eviction order. They will certify it and then you can place it with the sheriff. I will say, in Lake County, right now it’s the only county I’m aware of, maybe Lake Steele, will let you place the writ before the stay date as long as you put the eviction on after the day date. I hope that makes sense.
That’s a very rare event. Most other counties are not that efficient. I will say if you have properties in McHenry, that is the best place to own properties because first of all, the judge is straightforward, follows the law to the T and the sheriff is great. Everybody’s great out there. That’s my plug for McHenry today. At the eviction, be there on time. I’m going to tell you some bad news if you’re in Cook County. I’m going to tell you some really bad news. They don’t let you know when the eviction is until 24 to 48 hours before the eviction, that’s it. And then on top of that, they give you the cable guy hours, they’re either going to be from 8:00 AM to 12 or 12 to four and they literally will make you sit outside. If you go in to use the bathroom or you go somewhere to get a cup of coffee, I promise you that’s when the sheriff going to roll by, take a picture, say no one was there for them and you’re going to have to reschedule it and it’s going to take another six to 10 weeks. I promise you that. So you bring a buddy and make sure you don’t knock on the door to the tenant beforehand. You stay out on by the curb or where it is the best where you can spot a Sheriff’s car slowly driving by, and you need to approach that sheriff. It’s the craziest thing I’ve ever heard.
All my Collar Counties, fortunately, we actually get to pick the date. I mean, we don’t actually get to pick the date. They will tell you the date and you can prepare for it. I hope that makes sense. I will say this, Lake County, I placed an eviction on January 25th, the stay date was already over, it was over on February 1st, the first available eviction date the sheriff had was April 20th. This was back on January 25th. That’s how far in advance the sheriff is full. So even if you get a stay date that’s seven days, chances are your tenants going to live there for a month or two longer. Just keep that in mind. None of this is as fast as you want it to be. Please do not go to the door without the sheriff go in first and please don’t go in first. Even if you have the keys, unlock it, step back, let the sheriff go ahead of you. You don’t know what you’re walking into. They need to sweep the place. Please do not. Please go in after the sheriff is swept. Make sure you have your locksmith that day. You can change the locks and they have no reason to be able to come back in. Just happened to me last week. I told my landlord, didn’t have the locksmith, tenant went back in. We had to go into court, get a special order. The police wouldn’t go out there and take them out. They wanted the court order. It was crazy. And then make sure you have three able bodies. Doesn’t have to be a company, but don’t bring in your sister who has a bad back. I mean, just make sure you have three bodies and get their stuff to the curb.
I get a call at least once a week, “Well, they have stuff in there. What should I do about it?” Well, all you have to do is put it to the curb. If you keep it, you’re now responsible for their stuff. They have been at warrant between the notice you sent, the summons that was served, the sheriff posting it on their door when they’re coming out to evict, they’ve had plenty of time to pack up and get going. So you put it to the curb. Well, what about in my neighborhood? They’re going to have all this junk in the neighborhood. Guess what? I promise you within 48 hours, it will be gone and if it’s not gone in 48 hours, roll in a dumpster. Never had a landlord call me back after 48 hours to say, yeah, it’s all still out there. People are looking in the paper. They know when these evictions are happening. Trust me, it’ll get gone or the owner will come get it. That’s pretty much my spiel.
Nikki: That was KSN attorney, Julie Jacobson. She practices landlord tenant law as well as condominium, townhome and homeowner association law as well as has a background as a litigator. KSN is an experienced legal resource ready to provide you with quality advice and exceptional service. We look forward to demonstrating how we’ve earned the trust of thousands of clients over the past 35 years. If you’d like to reach Julie or anyone of KSN’s experienced attorneys, please call 855-5370-500. You can also visit klaw.com and complete the contact form to send us a message. Thanks for listening.
Outro: The music for this show is provided by podcastthemes.com. Please note the material contained on the KSN podcast is for informational purposes only and does not constitute legal advice. No attorney-client relationship is established by your review or receipt of the information contained on the KSN podcast. You should not act on the information discussed on the KSN podcast without first obtaining legal advice from an attorney duly licensed to practice law in your state. While KSN has made every effort to include up-to-date information on the KSN podcast, the law can change quickly, accordingly please understand that information discussed on the podcast may not yet reflect the most recent legal developments. Material is not guaranteed to be correct, complete or up-to-date. KSN reserves the right to revise or update the information and statements of law discussed on the podcast at any time without notice and disclaims any liability for your use of information or statements of law discussed on the podcast or the performance of the podcast generally. The KSN podcast may be considered advertising in some jurisdictions under applicable laws and ethical rules or regulations.
Please note the material contained on the KSN Podcast is for informational purposes only and does not constitute legal advice. No attorney-client relationship is established by your review or receipt of the information contained on the KSN Podcast. You should not act on the information discussed on the KSN Podcast without first obtaining legal advice from an attorney duly licensed to practice law in your State. While KSN has made every effort to include up-to-date information on The KSN podcast, the law can change quickly. Accordingly, please understand that information discussed on the podcast may not yet reflect the most recent legal developments. Material is not guaranteed to be correct, complete, or up to date. KSN reserves the right to revise or update the information and statements of law discussed on the podcast at any time, without notice, and disclaims any liability for your use of information or statements of law discussed on the podcast, or the performance of the podcast generally. The KSN Podcast may be considered advertising in some jurisdictions under applicable law/s and/or ethical rules/regulations. © 2022 Kovitz Shifrin Nesbit, A Professional Corporation.