“Evictions: Common Mistakes” – KSN landlord/tenant attorney Jessica Ryan discusses common mistakes in residential rental evictions. Topics impacting landlords and rental property managers include adhering to updated laws (federal and state plus local ordinances), landlord responsibilities, notices, liability, potential violations, and more. (57 mins).
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Intro: You are listening to the KSN podcast and on this episode we are discussing common mistakes in Illinois evictions. 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, property tax appeals, collections, and landlord tenant law. This episode is a replay of our February 15th, 2023 webinar where KSN attorney Jessica Ryan discussed common mistakes in Illinois evictions. Jessie addressed a number of issues that are important for landlords and rental property managers, including purposes of termination from non-payment to holdover or squatters, local ordinances, lease terms, ERP or early resolution program, documentation, trial preparation, and more. If you are a landlord or rental property manager with legal issues in Illinois, do not hesitate to contact Jessie or any of our attorneys at KSN. Please visit our website, ksnlaw.com to review our attorney bios, legal services and educational resources, including laws and ordinances, podcast episodes, and our future events calendar.
Jessie: For those of you who don’t know me, my name is Jessie Ryan. I’m a partner here at KSN. I run our landlord tenant department. I have been here for 21 years. I can never believe that number when I say it out loud. And in that time, I’ve represented landlords, rental property managers all over northeastern Illinois, Chicago, Cook County, all of the Collar Counties. So I have quite a bit of experience. I’m involved with the ChicagoLand Apartment Association, and work with the board of directors and the legislative committee there. So really try to stay ahead of the game when it comes to legislation that’s coming down and issues affecting my clients to try to keep you guys informed and ahead of the curve. And if I don’t know you and you’ve never worked with us before and you’d like to, you can head over to our lamp page, LAMP. It’s our Landlord Assistance Multipurpose program and there is an intake there and we can get your information and answer any questions that you might have. Ksnlaw.com/lamp. Okay, that’s enough plugs.
Let’s get down to the meat of what we are talking about today. So for the rest of you that we’re jumping in, I gave just a little quick Snapchat. We are– Snapchat. I have an 11-year-old daughter. Can you see where those words just fly out of my mouth? Now we’re going to be talking about evictions today and avoiding common mistakes. I am not going to go through the entire eviction process from beginning to end. This one, I really want to talk about some of the mistakes that our clients make in everything from the notices to documentation that slows down the process and creates delays and my hope is when you guys walk away from this webinar, you won’t be making any of those mistakes, all of the documentation will be clear and concise and legal, and we can just get those on file for you right away and avoid any delays. So with that, let’s get started. Quick little brief introduction on evictions. First, I always like to point out that the old legal name for an eviction was forcible entry and detainer. So, if you ever hear of an eviction referred to as a forcible or forcible entry and detainer, it is not some special subcategory of an eviction. It’s not different from an eviction, it’s just the old legal term for an eviction. So if I accidentally say forcible, I’m just talking about an eviction.
All right, so let’s talk about reasons for an eviction cause we’re going to be talking about the details for all different types of evictions. So, obviously we have non-payment, that’s the biggest one, that’s the bulk of our turnovers are non-payment of rent and other charges. Then we’ve got other conduct violations, other violations of the lease. You might have smoking, animal violations, noise complaints, unauthorized occupants, you know, all of those other violations besides non-payment. Then we might have holdovers. So the lease has expired in Cook County, you’ve given proper notice of non-renewal, the tenant doesn’t move out, we’ve got a holdover. Or in the same vein would be a termination of a month to month tenants. So, you’ve terminated the month to month tenancy or you’ve non-renewed a lease at its expiration and the tenant holds over and does not move out when they’re supposed to. So, that’s a holdover eviction. And then once in a while we get the squatter cases. So we actually just got one today where somebody who’s completely unauthorized has moved into the unit and there’s no lease agreement with this person and they have no right to possess the property at all.
So those are the basic reasons for eviction and we’ll talk in detail about notices and proof at court and the things that we need to make those evictions go smoothly. Basic steps, I’m going to in about two sentences go through our entire webinar from last spring going over the eviction process, but I just kind of want to give you an overview of where the eviction process goes from start to finish. So, by Illinois statute, first step, the landlord has to serve some type of termination notice and then wait for the notice period to expire. So if we’re talking nonpayment, that’s a five day notice. You wait for five days to expire and then you can file your eviction. When we file the eviction, we have certain pleadings that have to be filed. There’s the complaint that outlines all the facts of the case and what the landlord is seeking. Usually, an eviction order and a money judgment if non-payment is the issue and also a summons. And the summons is the document that tells the tenant when the court date is, and those documents then have to be served by the sheriff or process server depending on where the case was filed. Once we get service, that’s when we can start pushing the case forward and pushing the substantive issues in front of the judge so that we can get an eviction order.
Now, as you may know, if you’re in Cook County, especially in Chicago, we’ve got this ERP early resolution mediation program that we have to go through. Collar Counties, there might be some hoops to jump through, you know, out in King County, judge Dalton has his specific way of doing things and certain continuances to give the tenants an opportunity to appear in court. So we are going through that entire process depending on where the case was filed and that court’s rules, a lot of which are still post pandemic and pandemic related. And then once we get that eviction order in place, the judge grants the eviction order it has what’s called a stay date or a move out date. Legally, it’s called a stay date, but that’s the date by which the tenants have to move out. And when that date comes and goes and the tenants are still on the property, we then place the eviction with the sheriff of that county. In Illinois, only a sheriff can actually perform a physical eviction. We can’t have a process server go out and do it. A landlord definitely cannot do it. It has to be the sheriff. So, we’re kind of at the mercy of the sheriff’s schedule. We give the sheriff the eviction order and wait for the sheriff to schedule that eviction with us. And then we’ll talk a little bit about what to do on the date of the eviction coming up at the end here, but that’s basically a very quick overview of the eviction process.
All right, so let’s get down into details. First thing I want to talk about is the landlord’s notice and what your proper form should be for that notice. So there’s a couple of things that you really need to think about before you are putting your notice together and the first obvious one is the purpose of the termination. Why are you terminating this lease? Is it non-payment? Is it other violations? Is the tenant a holdover? Are these squatters? Terminating a month-to-month tenancy? All of these reasons require a different type of notice. So you really need to be sure of why you are terminating. You might have a month to month tenant and you want to terminate the month to month tenancy, but they also owe rent. Are you going to serve a five day notice for nonpayment of rent or do you just want to make sure you get them out so you’re going to serve a notice of termination of the month to month tenancy? Maybe they’re smoking, have unauthorized occupants and they also owe rent. So these are all things to think about before you serve your notice of termination. Sometimes it’s, you know, real easy, they owe rent. That’s the only issue, we’re doing a non-payment but when it’s a mix like that, you definitely want to make sure you are using the correct form because you are limited to arguing in court the reasons for eviction based on your notice.
So that notice limits you to the allegations that you’re going to be presenting in court for the most part. So you definitely want to make sure you are serving the right type of notice for the type of termination that you are going for. Other factors that you need to consider are local ordinance. So if you are terminating a month to month tenancy in Chicago, the timeframe for termination may be very different than if you’re terminating a month-to-month tenancy in McHenry County. So your local ordinance may have some influence over the type of notice. Evanston requires 10 days for non-payment versus a five-day notice. So be sure that you are familiar with your local ordinance before you serve your termination notice.
Lease terms, I keep referring to a five day notice for non-payment because that is what’s set up in Illinois statute but if your lease has a longer period for a notice, you have to follow your lease. I have had clients who’ve just pulled the lease off of the internet and it has 14 day notice for non-payment. So in that case, you can’t serve a five day, it has to be a 14 day notice. So if you’re not using an Illinois approved lease form, make sure you’re checking the timeframe for notices or for default notices. Sometimes it’s specific in your lease. We also have the CARES Act. This is left over from the pandemic. Landlord groups are trying to get the federal government to wake up and realize that this small section of the CARES Act is still in effect. If your property has a federally backed mortgage, Freddie Mac, Fannie Mae, then you have to give a 30 day notice for termination for non-payment versus five days.
Now judges really aren’t enforcing that. Judges don’t feel that the CARES Act trumps Illinois statute, which requires five days. So we’re not seeing eviction cases get dismissed when the CARES Act notice is not used for a CARES Act property. However, lenders are the ones who are enforcing it. So you could have fines and penalties if your lender finds out that you’re serving five day notices when you should be serving a 30 day under the CARES Act. So, there’s still some consequences there. I tell clients, as long as you understand the risk, that decision is completely up to you if you have a CARES Act property, but something to think about that requires a different form of notice. So you have to make sure that if you have a federally backed mortgage you are considering which one you want to do. And also I am still seeing once in a while a five day notice that has the pandemic relief language in these notices or even sometimes in Chicago that attach the Chicago Tenant Protection Ordinance disclosure form, all other pandemic related requirements are done, expired.
We had that tenant declaration form, you don’t have to do that anymore. There was a blurb about federal law gives you options, blah, blah, blah, blah, blah. It was like two sentences long, don’t have to include that on the face of your notice anymore. And in Chicago there was that extra disclosure for tenants’ rights under the Covid Protection Act and that does not have to be included anymore. So I wanted to mention those things because if you are still attaching those and the tenants that are going to respond and say, oh well we had a covid related hardship two and a half years ago and we would like whatever protection that’s offering, then we’ve got to deal with the tenant’s emails and that’s just going to delay your case. So, take those off.
Quick questions: do you have to go to the village to get information on the ordinance of that suburb? Ordinances are passed by county. So Chicago, we’ve got the RLTO, Residential Landlord Tenant Ordinance and Cook County has the residential tenant landlord ordinance. There are certain municipalities, Mount Prospect, Oak Park, Evanston, that do have their own ordinances. So yes, you should check with your village and be familiar with your county’s ordinance.
Bernie: Since 1983, KSN has provided landlords with affordable comprehensive legal services. KSN can eliminate the need for multiple law firms to handle the broad spectrum of a landlord’s basic legal requirements through our landlord assistance multipurpose program or LAMP, where landlords receive exceptional service related to their tenant-based issues. Some of the LAMP program features include residential and commercial evictions, review of leases, disclosures and vendor contracts, ordinance and code compliance, tenants and third party dispute negotiations and resolution including local property ordinances laws and more. If you’re a landlord experiencing any tenant issues or legal questions, just visit ksnlaw.com/lamp.
Jessie: All right, let’s talk about the content of your notice. First, you need the name of all tenants. Please don’t only name one tenant when there are three leaseholders, all of the tenants named on the lease should be named on the notice unless you have amended the lease because somebody moved out or a tenant passed away or something like that and the tenant was taken off of the lease by a separate agreement, obviously you don’t have to name them, but otherwise name all of the tenants on the lease. The address needs to be correct. If there is a unit number, add that unit number on the notice, add the zip code, make sure the street number is correct. All of those little details a judge will look at all of those and the judge is basing his eviction order that he’s going to grant us on your five day notice. So if you don’t name all of the tenants, he is going to say, tenant Joe Smith didn’t get notice that you plan to file an eviction, so I’m not going to put his name on the eviction order. And then we’re in trouble when Joe Smith is living in the unit and the sheriff comes to evict and his name isn’t on the eviction order.
You should also name all known occupants that are 18 and older. I do recommend if you have a lease where you list known occupants or authorized occupants to put their date of birth on the side or at least have it in the application materials because oftentimes you’ve got a 16, 17 year old kid at the time of move-in when they sign the lease but two or three years down the road when rent isn’t getting paid and we need to file an eviction, that kid is now 18 years old and should be named on the lawsuit and named on the eviction order. So, in your notice, name any known occupants, age 18 and older. You also want to include all unknown occupants and when I say that, I mean those three words, all unknown occupants. So we’ve got Betty Sue, Joe Smith and all unknown occupants would be a list of names on your notice. That’s because when the sheriff comes out– So we want everybody who’s on the notice is going to be named on the eviction order. When the sheriff comes out to perform the eviction, if there is some guy sleeping on the couch who is not named in the eviction order and the eviction order does not say all unknown occupants, the sheriff will walk out, the sheriff will not perform that eviction because that person sleeping on the couch is not named and unknown occupants is not named.
So really important, I’ve really kind of hammered home naming the correct people. It’s really important if we get a five day notice that only has one tenant named, we tell the client, Hey, you’ve got to reserve this notice with everybody named or you’re risking either the case getting dismissed or the sheriff not performing the eviction at the end of this entire process. So, not naming the correct tenants, not naming all unknown occupants is going to cost you at least five days cause you’re going to have to re-serve a new five day notice and wait that five days. For non-payment cases, the amount that’s passed due and the correct amount of time to pay. So the amount passed due, obviously you want to include the correct amount that is owed as of the date that you signed the notice. Do not include next month’s rent if it hasn’t come due yet, and just make sure you have it through that date. You can include utilities or late fees, other charges if and only if your lease says that those amounts are deemed additional rent. So if your lease says all utility charges are additional rent, late fees are deemed additional rent, then those can be included in that rent amount on your notice for non-payment.
So make sure you’ve got the correct amount due and then the amount of time to pay. This is where we go back to talking about, is it a five day notice? Is it a 10 day notice for non-payment in Evanston? Did you pull your lease off the internet and you have to give them 14 days’ notice? Is it CARES act and you have to give them 30 days’ notice? All these different time periods, right? You have to make sure that your notice specifically says you have five days to pay this amount, 10 days to pay this amount. Make sure that timeframe is correct. You’ll be making a demand for possession with the property address and then there is statutory language that you have to include. It’s the low one or two sentences that starts with only full payment. Those letters are in all caps and that language you will see in all Illinois non-payment notices because it is required by statute. If you do not have that language, if you pull the notice off the internet and it’s not in compliance with Illinois law, we again will tell you can’t go forward. The judge is going to dismiss your case because you don’t have Illinois statutory language on them.
So make sure you are using an Illinois compliant notice and then your notice needs to be signed and dated. You should be signing the notice. You should not be typing in your name. Digital signature is okay as long as it actually is a digital signature. There’s case law that says the landlord’s signature is required on the notice. So we will file a case if it’s a type name, but we will explain to the client that there is a chance, an outside chance if the judge– that he could dismiss your case for lack of a signature. So just sign those notices.
All right, so we are going to talk now about service of a notice. Whether it’s the landlord, landlord’s agent or process server, any of those people can serve a termination notice. It is different from the lawsuit documents. The landlord and landlord’s agent are not allowed to serve the lawsuit documents, but you can serve a termination notice. You can serve the notice on any name tenant, anyone else in control of the property. So that would be any other resident who’s living there who’s age 13 years or older, 13 years or older, any resident age 13 or older. So a seventh grader can accept service of a termination notice. It’s always good to keep in mind some clients go to the door and the kid answers and they’re like, Hey, is your mom home? I got to give them this notice. Not realizing that they can say, “Hey Johnny boy, how old are you? Oh, you’re 13. Here’s a notice for your parents.” So you can serve a notice on a resident who’s 13 or older. Then we have on the bottom of your five day notice, sometimes it’s the second page or of your termination notice, there’s that affidavit of service portion, might be called proof of service, certificate of service, affidavit of service but it will always say on such and such I Jessie Ryan, on such and such a date, served the below tenants in the following way and then here on my PowerPoint it has one through four and those are the four methods of service that are allowed by statute.
You have to fill these in properly and correctly, so when the judge glances at it, the judge says, ah, I know exactly how this notice was served. Everything is filled out, it’s signed, we’re good to go and I’m going to give you your eviction order. Instead of a judge saying, huh, nothing is circled here, I can’t really tell which method of service it is. Or Hey, there’s three tenants but on line number one, they didn’t fill out which tenant they served. So now I’m going to give you a 30-day continuance to bring your client in to testify as to how they served this notice. No delays, right? That’s what we’re trying to avoid. Avoid any delays. And one of the ways to do that is to make sure the affidavit of service on your notice is filled out correctly.
So number one, by delivering a copy thereof to the within name tenant blank. If you are handing the notice to one of the named tenants, that’s number one, you should circle the number one and then write in the name of the person you handed the notice to. Number two, by delivering a copy to so-and-so, a person above the age of 13 years residing in or in charge of the property. That is for one of the residents, 13 or older. Try to get that person’s name. If you can’t get the person’s name on the blank, put in a description, female Caucasian, five, eight, 140 pounds, whatever it might be. Try to put in some type of description of who you served the notice on. Number three is sending it by certified mail with a return receipt requested. This is the worst method of serving a notice. Do not serve a notice by certified mail. I feel like back in the day, 15 years ago, it was easier to do it and now it just does not work and the reason is the judges want to see that green card with a legible signature of one of the tenants. It just doesn’t happen anymore. They’re signing it on the iPad thing that the postman brings and it’s not legible and you can’t tell who signed it or we’re not getting any signature card back. When you look it up online, the signature doesn’t appear for one reason or another, we are not able to bring proof to the court that the tenant received that certified mailing.
So in my opinion, certified mail is a really, really bad way. It will delay the filing quite a bit because you’re waiting and waiting and waiting for that certified mail return and then you’re going to see that it’s not a signature we can use anyway and then you’ve got to try and re-serve it. And then the fourth one is posting a copy on the door and if you look at that last phrase, it says no one being an actual possession thereof. That means you should only post if no one is in possession of the property. Now look, caveat to that, Chicago judges only want you to post if no one’s in possession. Outside of Chicago, if your lease has a provision that says the parties agree that a notice can be served by posting on the unit door, you can post. We do recommend several attempts by personal service just to show the judge due diligence but as long as your lease has that provision outside of Chicago, you can post. I say outside of Chicago, we do have the Suburban Cook County District. There are a few judges who are very particular, just like the Chicago judges about posting.
So if you are in the Chicago suburbs and you’re unsure whether you should post or not, and we have not had this conversation, please talk to me. Districts two and three are usually fine with posting. District five, not so much, not good. Districts six and four are kind of which judge is going to be on the bench. So, it’s a little bit specific if you’re in the Cook County suburbs, whether you can post, and I do want to hit this, I want to make sure I have time for questions, but I do get the question very, very often. “We’re In Chicago, we have tried to serve this guy 10 times. He’s not answering his door, he’s totally avoiding us. What do we do?” In those cases, we have what we call an affidavit of due diligence. So after eight to 10 attempts, different days of the week, different times of day, then you can post the notice on the unit door. We will also recommend you send it by regular mail, not certified, and if you have an email address for the tenant, email it to them. At that point, we will ask you to sign an affidavit of due diligence that we prepare that outlines the days and times of all of your attempts at personal service and the date you posted, mailed and emailed, sign off on that.
I will say in Chicago there is always a risk of dismissal if you don’t personally serve the notice. But you know, we’re kind of tough on our clients, like it’s got to be eight to 10 attempted service, you’ve got to do all these different little things and then sign the affidavit. We have not yet had a case dismissed when we have done that. So it has worked to show the judge that you have used due diligence to try to personally serve and only posted and mailed as a last resort. So, it is very, very important that that affidavit of service on your five-day notice or any notice of termination is properly filled out. One question, “does the notice have to be posted to the door or can we slide it under the door?” So if the lease allows for posting in like the Collar counties that I was referring to, it usually says the parties agree that notices may be posted on the unit door. I recommend that they be posted on the unit door. You can put it in an envelope but tape it to the unit door. If your lease says a notice can be served by sliding it under the unit door, then you can slide under the unit door. But otherwise you should be giving it by posting it on the door.
All right, so the tolling period, that sounds like a really big term. All that means is the amount of days you have to wait before getting the case on file after you serve your notice. So, I do see a question. How much time do we give for a notice of termination on a month-to-month tenancy?” As I had said, that is going to depend on the location of the property, how long the tenant has lived in the unit, if it’s in Chicago. There are so many factors that that’s a very specific question. So I’m not going to talk about the number of days you have to wait. What I will tell you is you are counting full calendar days. So if we are talking a five day notice and you serve it today, February 15th, and you serve it at 11 o’clock today, you don’t get to count today because today is not a full calendar day. So the first day of your five days that you’re counting is the 16th. So it’d be the 16th, 17th, 18th, 19th, 20th and they have all day on the 20th till midnight of the 20th and you can’t file your lawsuit until the 21st.
So, if it’s 10 days, you’re going to count them the same way. Your first day of your count is the day after you serve it and they get till midnight on the 10th day if it’s a 10 day notice. Do not count holidays. So Martin Luther King Day, 4th of July, things like that, you are not counting those holidays in your five days or 10 days. The weekend rule is kind of interesting. You can count weekends in your five days or your 10 days, but judges will always
say if that fifth day ends on a weekend, they want to give the tenant one business day to actually make that payment. So, if your five days end on a Saturday or Sunday, you should actually give it until midnight on Monday and then file suit on Tuesday. But if the second and third days are Saturday and Sunday and the fourth day is Monday and the fifth day is Tuesday, you don’t have to give them any extra days. And I hope that makes sense. It’s only if the end of your notice period ends on a weekend, judges like to see that you’ve given them one business day to actually take care of whatever the issue is. So that’s the weekend rule. Penalty I wanted to put in here, automatic dismissal. If you file your lawsuit one day early, the case will be dismissed. That’s by statute. Judges really don’t have any discretion and they really seem to love enforcing that one because it gets the case off their docket without them barely having to glance at anything.
So let’s talk now about the account ledger for non-payment cases. I have a couple pointers for non-payment cases, so I want to hit on those very, very quickly. Your account ledger, please, please, please have a chronological ledger showing all of the credits to the account, any debits to the account, and a running balance day by day, month to month. We’ve got a balance. We’ve got rent that was due, that is the debit on the account, $2,800 they owe. The running balance as of January 1st, 2022 was 2,800 bucks. They made a payment. Look at that. It says that there was a check. We know that it was check 1422 that they made payment of 2,800 bucks and our balance then was zero. I’m not going to go through line by line, but you can see it is very easy for a judge to say and look at this and know exactly what came due, when and if the tenant says, well, on February 18th I made a payment of 1800 bucks and the judge says, “Well, I don’t see it on the ledger. Show me proof of that payment.” If you are a landlord who hands the judge a bunch of receipts that aren’t in a chronological ledger, and the tenant says that the judge is going to look at the landlord and say, “Well, I have no idea when all these receipts came due. I’m not putting them in order. You show me how this works out,” and then the burden falls on the landlord.
Having a really good solid ledger builds your credibility in front of the judge, puts the burden on the tenant to try and defend their payment history and also allows us to get the case on file really easily because I know the day I’m filing, there’s $10,200 due. I’m not taking three days to go through receipts or whatever you might be sending over to show proof of payment. We need this beautiful account ledger to show the judge and it will make your case go much more quickly. We don’t want the judge to give him any reason to continue the case for us to prove more details to him. Non-Payment cases. Another way that things can be delayed is if you accept a partial payment. Any payment after a five day notice has been served, even a partial payment reinstating the tenancy and that notice will be void. If you have a $2,500 five day notice, that’s what they owe, they sneak in a payment on your automatic payment portal for a thousand bucks, you’re going to have to serve a new five day notice. Your two options if the tenant is trying to make a payment, you can either refuse any partial payment and turn off the tenant’s ability to make automatic electronic payments. Require them to come into the office to make a payment so that you can ensure its payment in full. You don’t want them making automatic payments and slipping partial payments in.
Or if you like having that money in hand, you can accept a partial payment and then just reissue a new five-day notice for the remaining balance. I always tell clients, I think one of the best business practices, if you turn off their ability to make automatic payments, it forces them to come into the office to make payment. So again, that example, 2,500 bucks due on the five day notice, they come in with a thousand dollars, but they’re coming into your management office with that thousand dollars. So you can say thank you, let me go write you a receipt and you go back and you write a receipt for a thousand dollars and a five day notice for the remaining 1500 and you come back and you hand them both. Now you have served a new five day notice, you got a thousand bucks in your hand and you’ve already served that new five day notice and that clock can start ticking on that five day notice. So that’s the best practice to get the money and serve a new five day.
Now in other cases, payments after notice. So that was a five day. That was talking about a five-day notice. When you are terminating a month to month tenancy or if you have not renewed a lease and it’s expired, do not accept any payments after that lease is terminated. If you have served a termination of a month to month and their lease is done, their tenancy is done February 28th, do not accept March 1st rent. Same thing if their lease expires February 28th, do not accept March 1st rent. When you accept March 1st rent, you have created a new month to month tenancy and you’re going to have to give them another notice to terminate that month to month tenancy. You’re like reinstating, reinforcing your relationship with them because you took their money in exchange for their occupancy for that month. So, then you have to start over.
10-day notices for cause. So those are other violations, smoking, unauthorized occupants, animal violations, all of that. When you’re serving that 10 day notice, I get the question very often, can we accept payment? We’re not terminating based on non-payment. These people pay their rent, but we can’t have them partying every weekend like they are. So, it’s a little bit different. There is a legal tool called use and occupancy. If we have the case in court already, we can ask the judge for use and occupancy. If this is still in that 10 day notice period or you’re just turning the case over to us to file and we haven’t filed it yet, the rules are a little bit different and I’ll tell you why. We’ve got the Chicago RLTO and the Cook County RTLO. The Chicago RLTO, the language says, if you are terminating a lease for non-payment, you cannot accept payment and move forward on that breach. So, the RLTO says that accepting payment and messing up your case only applies for non-payment cases. If you are terminating for non-payment, then you cannot accept payment and continue on that breach for non-payment.
We always argue to the judge, the plain language of the RLTO in Chicago does not say. It says, if you’re terminating, it implies that if you’re terminating for something other than non-payment, you can still accept payment and continue on with your case. We have made that argument successfully. I will say I never guarantee what a judge is going to say, especially in Chicago, but that is the language of the RLTO, and it has worked in arguments that we’ve made. So, Chicago, I feel better saying, yes, you can accept a payment after serving a 10 day notice. Cook County, so suburban Cook County outside of Chicago, no, you cannot accept payment after a 10 day notice. When they adopted that ordinance, they changed that language from Chicago and it says if you accept payment after terminating for a breach, you cannot proceed on any breach. So that one says, if you accept payment, you cannot proceed no matter what the violation was. So, on that one, you cannot accept payment after a 10 day notice until we get permission from the court. That’s that use and occupancy. We get permission from the court for you to accept payments in exchange for the tenant continuing to occupy the property during the litigation and in the Collar counties the lease controls. Some leases say that you can accept payment without it being a detriment to your eviction case and some leases do not have that language. So a little bit case specific outside of Cook County.
All right, so let’s talk about in court, just starting to hit on use and occupancy. So once we’re in court, can you accept payments? So, let’s talk about partial payments first and it’s that use and occupancy. So we can go into court on a motion for use and occupancy that requires the tenant to pay rent while the case is pending or that gives to say, Hey judge, the tenant wants to make payment of a thousand bucks. They’re sitting there with a check in their hand. We just need you judge to tell our client that they can accept it without prejudice to their case. Now in those, we use those all the time in all different types of cases when a tenant wants to make payment and we need the court’s permission. The other one where we are forcing the tenant to pay, generally the judges do not issue those orders unless it is a jury demand case and that’s simply because the judges know the jury demand cases are going to go on and on and on. The landlord is going to be without rent for a long time. So they allow use and occupancy in a regular eviction case, even though we’ve got the ERP and all the mess that is delaying things, the judges generally do not require use and occupancy.
So just so you know, I know I’m going to get 500 emails saying we want that use and occupancy motion in every single one of our cases. We can only require tenants to pay use and occupancy in jury cases when the judge allows it. Holding a check, I wanted to make a note. The Cook County, RTLO, so Suburban Cook County, that ordinance actually says you cannot even hold a check. It says if a landlord accepts or holds a check while a case is pending, they lose the right to continue with that case. So do not hold a check while you’re waiting for us to go into court and get permission. You’re going to have to return it to the tenant until we get the court’s permission to accept it. That’s Suburban Cook County. Payment in full in Chicago and Cook County, under those ordinances, the tenant has a one-time right to pay the entire balance of rent in full plus court costs. You must accept that payment and unfortunately the case then will be dismissed whether you want to keep the tenant or not. So please don’t make the mistake of telling the tenant you’re not accepting any payments whatsoever, even payment in full, because you don’t want them in the property anymore. If we file the non-payment case and they come up with payment in full plus the court costs, they do get to stay in the property.
Collar counties, the rules are different. If they do not pay in full in the five days after service of the five day notice, then you can proceed. And you know, as long as we have that use and occupancy and the court’s permission to accept payment after the five day notice period, you could accept the payment and still move on with eviction. If you don’t want them in the property. Rental assistance, you still can proceed with an eviction notice and the lawsuit while the rental assistance application is pending. It probably will delay the case a little bit because when the tenant comes in and says, we’ve applied for rental assistance and we’re just waiting for it to come through, and it’s taking the program coordinator three to six months to issue the check to you, the judge may continue the eviction case waiting to see what happens with the rental assistance. Please keep in mind that if the money is granted in most programs in any of the federal or state funded programs for rental assistance, you are required to dismiss your eviction case even if the payment, the grant money doesn’t cover the entire balance. So keep that in mind. If you fill out your application for rental assistance on behalf of that tenant, you are signing a landlord agreement in that application and in that agreement, you are agreeing to dismiss your case once you receive that check, whether it covers the entire amount at all. So just keep that in mind.
We had some issues earlier in the pandemic when rental or earlier in the rental assistance programs with judges finding that because a landlord has a duty to mitigate their damages, meaning the landlord has a duty to re-rent the unit or do whatever they can to limit the tenant’s liability, we had a few judges arguing that that meant a landlord is required to apply for rental assistance to limit the tenant’s liability for the rent. Most judges do not feel that way anymore. They’ve come around and even with those judges, really the only time our clients didn’t want to apply for rental assistance was when there were other problems with the tenant. There were other violations, unauthorized occupants, the lease had expired, and they just wanted them out. And so, if we could argue those things to the judge, then the judge would still give us the eviction order. But we need to know these things so it could delay your case. If you haven’t applied for rental assistance, we don’t know you don’t want rental assistance and the tenant comes into court and says, oh judge, I’m going to apply for rental assistance. I just need 30 days to do it. The judge is going to give the tenant that continuance unless we can say, judge, our client is not willing to accept rental assistance because of violations A, B, and C. So, we really object to any continuance in this case.
Now, sometimes the judge is still going to give the continuance, I’m just saying because they’re protecting the tenants even more than ever right now but in a lot of cases then we are able to argue against that continuance if we know that you don’t want rental assistance. We have this ERP program in Cook County, Chicago. It’s an even more complicated process than the Suburban Cook County. In these cases, there are several continuances for the tenant to seek counsel by Legal Aid, to apply for rental assistance. Throughout this process, we are going to be in contact with you about what type of agreements you’re open to if you’re open to rental assistance. So, our office, knowing these things upfront is really, really important to keep the case moving along. Like the example that I just gave, if we know you don’t want rental assistance, we can try to avoid continuances for the tenant to apply for rental assistance.
All right, so in court, minimizing delays. Your documentation should be clear and reliable, just like that account ledger that I showed you earlier. Send your documentation timely to the attorney. If we need something before court, please make sure that you are giving it to us earlier than two hours before court. We have to, in most cases, e-file our account ledgers and property manager affidavits about three days before court. So, if we say, Hey, we need this for court next week, please get it to us by such and such a date, we’re not just trying to push you to give it to us way early. We actually have to get these things e-filed or the judge won’t have it in his electronic file. So giving documents timely to your attorney, clear, reliable documents, that’s going to make your case go faster. Settlement negotiations and agreements, I kind of hit on this a minute ago. Us knowing what you’re willing to do upfront is really, really good. So we don’t have to go back and forth on what’s acceptable. If we do have to relay an offer to you, getting back to us really quickly is really important so that we can either get it settled or tell them what our counter offer is. We hate going into court and saying, “Judge, we’re trying to settle. Haven’t heard back from our client yet. We just need maybe another week to get this thing done.” We’re taking a continuance that we really don’t need. So nice quick responses are great.
If we are in trial, meaning we’re having a hearing before the judge, it is our burden of proof. It is on the landlord to prove the case. We may need witnesses, make sure your witnesses are available. If it’s for nonpayment, we just really need a property manager, assistant property manager, business manager to testify to the numbers. They’re basically just going to be testifying to what’s on the account ledger. But if we have a violation case, noise complaints, smoking, that property manager might not be in the property. That property manager probably wasn’t the one who heard the party going on at 2:00 AM. So in that case, we need witnesses who are other residents who actually witnessed the other violations. Oftentimes when it’s this type of violation, we’ll let the client know like, Hey, since we’re filing on this one, it looks like it’s going to go to trial in about a month or two months, start talking to the other tenants. We need the list of names, we want to talk to them. We have to make sure they’re cooperating to come into court. If you can have that cooperation secured before you’re even turning the case over to us and let those other residents know we’re going to need you down the road, you may need to testify. I just want to secure that cooperation right now. That’s fabulous. The less delays the better.
And again, records, having all of your documentation clear and concise and organized is fantastic. We don’t want the judge to ever look down and say, if you can’t get your documents together, I’m continuing this case. I have watched judges do that to other landlords in court and it’s not pretty and it’s embarrassing and it costs you a continuance. So just make sure you have everything and I always say bring your entire file. I mean, as long as it’s not like four boxes that you have to cart in because a tenant may never bring up. We’ve talked to legal aid, we’ve discussed settlement, they’ve never said that they’ve had roaches in their unit for three months, and all of a sudden on the day of trial, they bring up that they’ve had roaches for three months and nobody’s done anything and we didn’t know they were going to say it. We didn’t tell you to bring anything, you didn’t bring any records about all of the extermination services that you’ve given us because we had no idea. Tenants come up with these things all the time just on the day of trial. So if you have your entire file on this tenant and all of your records, it’s so easy to say, well judge, in response to that, we have a record of all of the extermination services that we have provided or a list of all of their complaints and there isn’t a single one about pest control. So having all of your records on the day of trial is fantastic.
At the eviction, so now we’ve gotten the eviction order and the sheriff is going to come out to perform the eviction, be prompt and alert for the sheriff. When I say that, I mean stand on the sidewalk with your arms waving as the sheriff goes by because sometimes they just slow down and don’t even stop. I think they’ve actually gotten better. That used to be like 10 years ago, 10, 20 years ago, that they would do that but you really do need to let the sheriff know that you are there for the eviction. If they don’t find somebody right away who is there too, they call it a receiver, is there to receive them they will leave. Do not go to the door without the sheriff. The sheriff doesn’t like that. They could walk away and say, “We’re not evicting because you were strong arming the tenant or whatever it may be. So don’t go to the door. There’s also a huge safety risk. You have to remember, this is like one of the worst days of these tenants’ lives and you don’t know what they might do. Have your locksmith there, have movers there and have tarps under the property and one to cover the property that’s going to go out on the street. You need all of those things there on the day of eviction or the sheriff may not perform the eviction.
All right, I’m going to try and hit a few questions. We’re going to go over maybe by five minutes if you have to leave, I totally get it and thank you so much for attending, but I do want to hit some of these questions. Do courts recognize waiver for personal notice if the tenant moved out or is not at home, but belongings are there? Your service is going to depend on where the property is located. Generally, you cannot waive a tenant’s right to receive a notice by personal service because it’s required by statute. However, out in the Collar counties, your lease can include a provision that the parties have agreed to serve notices by posting on the door. This question goes a little bit more to if the tenant moved out or is not home, but belongings are there. There may be some factors of abandonment that you could explore, but generally if the tenant still has belongings there, you have to try to serve the notice personally and we could do that affidavit of due diligence if you’ve tried numerous times without success and then post for Chicago and Cook County properties.
Does the five-day notice need to outline the months that rent has been past due and the amounts as well as amounts included in the total dollar amount requested for late fees? So first question there, do you have to state the months that rent goes unpaid? You do not. You only have to have the amount due and I think sometimes listing the months makes it a little bit more confusing and complicated because you might have partial payments in some months. So saying, you know that $1,500 covers November, December, January and February, but the tenant paid like 200 bucks each month to me, actually clouds the issue. So, I actually do not recommend that my clients put the months that are included in that total amount due and the second part of that question is, do you have to break down the amounts that are included, like for late fees and everything? You do not. You can put the total balance due of rent. So again, only include late fees or utility charges or parking or storage. If those amounts specifically say that they are additional rent in your lease, you should not be including late fees if the late fees are just late fees and they’re not additional rent. So only rent should be included in your five-day notice and any amounts that are deemed additional rent by the lease.
Can you accept payment while the five day is still active within the five days and still proceed without serving another notice? No. We really talked about that one in detail. Do not accept partial payment. You will have to serve a new five-day notice. Do you have to give a reason for non-renewal when the lease is up? You do not. You can just serve a non-renewal notice. There is no law or ordinance in Illinois that requires a landlord to state the reason for non-renewal. And I actually recommend that clients do not state the reason for non-renewal so that you don’t end up with some type of convoluted discrimination complaint on your hands when it appears you are discriminating against one group of residents versus another. Will you please give an idea what is the range of cost for an eviction and timeframe for Suburban Cook County rentals? Our office charges a flat fee for evictions plus the court costs. In Cook County the court costs are between 350 and 400 to file the lawsuit with the clerk’s office and the sheriff is $60 per named tenant. So it could be Joe Smith, Betty Sue, and all unknown occupants. That’s three people, $180 for the sheriff. In the suburbs outside of Cook County, the amounts vary. You’re going to have somewhere between three and $400 to file the case in most counties, plus an additional somewhere between, let’s say 50 to 150 for service, either by the process server or the sheriff.
If you would like our eviction fee schedule I can email that to you. Send me an email at firstname.lastname@example.org. I may ask for a little information about your properties and then send you over all of our information. Thank you guys all so much for attending. Sorry I went over a few minutes, but I hope you guys picked up some tips to keep your evictions moving smoothly and to avoid any delays that we can avoid. There’re enough delays that we can’t avoid. We definitely don’t want to add any delays that could be avoided and I look forward to hearing from you if you have any further questions. Thank you.
Bernie: That was KSN attorney Jessica Ryan. Jessica is the head of KSN’s landlord tenant department. Our firm is an experienced legal resource ready to provide landlords and property managers with quality advice and exceptional service. We look forward to demonstrating how we have earned the trust of thousands of clients over the past 40 years. If you’d like to reach Jessie or any of KSN’s experienced attorneys, please call 855-537-0500. You can also visit our website, ksnlaw.com, and complete the contact form to send a message. Thanks for listening.
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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. © 2023 Kovitz Shifrin Nesbit, A Professional Corporation.