“Landlord Frequently Asked Questions Part 2” – KSN landlord/tenant attorney Jessica Ryan discusses frequently asked questions by Chicagoland landlords and rental property managers. Topics include evictions process, legal concerns, serving a tenant proper notice, accepting partial rent payments, unpaid balance options, and more. (48 mins.)
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Episode Transcription
Intro: You are listening to the KSN Podcast and on this episode, we’re discussing more frequently asked questions by Chicagoland landlords.
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. This episode is a replay of our September 20th, 2023, webinar where Case and Attorney Jessica Ryan discussed frequently asked questions by Chicagoland Landlords. She addressed the eviction process, legal concerns, serving a tenant proper notice, accepting partial rent payments, unpaid balance options, and other frequently asked questions that impact Illinois landlords and rental property managers. KSN has provided landlords with affordable comprehensive legal services since 1983. We handle residential and commercial evictions and building code violations. We also review leases, disclosures, and contracts. We can handle third-party disputes with tenants, and we can address rental property legal concerns including fair housing, section eight housing questions, and landlord and tenant ordinances. If you’re a landlord or rental property manager experiencing any tenant issues or legal concerns, please call our office at (855) 537-0500. You can also visit our website ksnlaw.com and complete the contact form to send us a message.
Jessica Ryan: Thanks everyone for joining today’s frequently asked Questions part two, for landlords and rental property managers. My name’s Jessica Ryan, I’m the head of our landlord-tenant department here at KSN. I have been with KSN for 22 years in November. I have been working with landlords and rental property managers for the majority of that time I really enjoy it. I work with the Chicago Land Apartment Association; I serve on their board of directors as well as on their legislative committee. Really try to stay kind of ahead of the game so I know what’s coming down the pipeline so that I can keep my clients informed and educated. And so, throughout the year, we give quite a few different webinars on different legal topics. Today we are going to cover kind of the most frequently asked questions that I get, at least part two in representing landlords we do a whole array of services.
We’re kind of a one-stop shop for landlords. So, in addition to evictions, we’ve got contract reviews and dispute resolution. We have a full litigation department doing breach of contracts and building code violations as well as discrimination defense and mold claims. So, we kind of like to be the one-stop shop for landlords and not just limit our practice to evictions. FAQ part one, we covered emotional support, animal move-in fees, and security deposits. There are some new Illinois laws coming out that become effective January 1st, I’m getting lots of questions on those, so we covered those as well. That episode has been turned into a podcast or that seminar’s been turned into a podcast in case you missed it last month. So, let’s go over what we are going to talk about today. Today is going to focus a little bit more on eviction notices, serving a tenant with a notice, accepting partial rent payments, and rental assistance.
What to do if a tenant leaves you with an unpaid balance? And my favorite question is, why is my eviction taking so long? So, we will discuss that in detail as well. Let’s dive into a lot of questions when you have a tenant with a few different issues and a client will ask, well, what are the different ways I can terminate the lease and evict my tenants? What do I have to do for each of them and what’s the best way to go? So, there are three common reasons that we are evicting tenants in Illinois. First is failure to pay rent. Under Illinois, you are going to be serving a five-day notice on the tenant that is under Illinois law. Illinois says you must give at least five days’ notice to the tenant. However, if you are pulling a lease off of the internet and your lease says you have to give seven days for a nonpayment notice, you are going to have to follow your lease as long as it is an amount over five days. Five days is the minimum amount of time you have to give a tenant under Illinois law. So just be sure to check your lease and make sure there’s no other language or other timeframe for a notice. So, five days’ notice for failure to pay rent. Another very common reason for eviction, kind of a legal way of writing this, but failure to conduct themselves according to the lease terms. So, that’s a fancy way of saying they’re breaching the lease in some other way besides paying rent, so these are conduct violations. They’re engaging in something that’s objectionable, and improper could be pets or unauthorized pets. They’re having parties, they’ve got unauthorized occupants, they’re smoking all different types of conduct violations that are in violation of the lease, or general noxious and offensive behavior where they’re causing disturbances or annoyances to other residents. This type of eviction requires a 10-day notice.
So, you have to give the tenant 10 days to correct that violation or move out. If the tenants do not correct the violation or vacate the unit within 10 days, then you can bring your eviction lawsuit. Now I say that there is an exception, a very small exception for what we call an incurable violation. So, if it is an unauthorized pet, you serve a 10-day notice and in 10 days your tenant gets rid of that pet you cannot evict, they quote cured the violation in that 10-day question that I actually do get a lot. The question is if the tenant cures the violation in 10 days for a party, does the landlord need to reissue a new 10-day notice if there’s another violation for the same problem? So, these types of violations, parties, noise, and smoking are sometimes difficult because they throw a huge party that’s very disruptive. You get a ton of complaints, there’s damage to your common areas, so you serve the 10-day notice, and they don’t have a party for 10 days, but on day 13 they throw another rager. What are you going to do? So, at that point, we kind of look at these on a case-by-case basis. The judges are usually not going to evict for one violation of this type one time caught smoking, one noise violation, one party. We need to show a pattern of behavior. So, in this kind of case, I always encourage everyone the first few violations, send violation notices in writing, send warning letters, whatever it might be to build up to the 10-day notice. If you have a case where there’s a party, you serve a 10-day notice and they wait two weeks and then have another party, we generally recommend you serve a second 10-day notice.
At that point, we added some language that at this point it is not curable because you violated the same sections of your lease again within a short timeframe. And after that 10 days, if they have not moved out, then we are comfortable bringing in an eviction lawsuit. But I will say we do like to look at those on a case-by-case basis because we’re just familiar with the judges. It depends on what county you’re in, the judge that’s sitting in the eviction courtrooms, and what we know he will evict for and what we know, he’s going to shake his head and say, I’m not giving you an eviction order for this. So definitely reach out to our office in those cases so that we can review them on a case-by-case basis. Let’s say, on the other hand, your tenant murders a resident in your building. Let’s hope that never happens. It’s an extreme example. Your tenant cannot say, well I didn’t murder anybody else in 10 days. So now you can’t evict, that’s what we call an incurable violation. They cannot cure that violation by going back and bringing that person back to life or changing their behavior. You have a right to evict that person no matter what. So that’s conduct violations with 10 days’ notice. Then we have termination of tendencies or termination of occupancy. So this is when the lease term is coming to an end, you’ve served a non-renewal notice and they do not move out at the end of their specific lease term. They’re then considered a holdover or maybe they’re on a month-to-month lease and you served a termination of the month-to-month lease, they do not move out again, they’re a holdover and you will be evicting them.
We also have the case of squatters who have no right to occupancy in the first place. And so these types of terminations are also kind of one of the top three non-payment conduct violations in these holdover squatter type cases. So second question I get a lot is about termination notices. A five-day or a 10-day notice or even a notice to terminate a month-to-month tenancy, my tenants are evading service. Can I post the notice on the door of the unit? This question I get three to four times a week and the answer is my favorite legal answer. It depends. So under Illinois statute, the Illinois statute specifically says, and this is where this comes from. It’s not just judges kind of making up rules. It’s actually Illinois statute that says any termination notice has to be personally served on the tenant or an occupant of the unit who is age 13 or older and it can be posted only if no one is in actual possession of the unit.
So by Illinois statute, you can only post if no one’s actually in possession. So you know that they left to go take care of a family member across the sea permanently and they’re not coming back to the US ever but they left a whole bunch of furniture and you know they’re litigious or whatever it might be and you want to go through the eviction, you can post, you know no one’s in possession but they’ve got a bunch of stuff and you’re going to not use abandonment. You’re going to you know, do it the most conservative way, inhabit sheriff evict. That is the only case under Illinois statute when you can post the notice. However, there is an exception and this applies outside of Cook County. In my next slide, we’re going to talk about Cook County in Chicago. But outside of Cook County, there is case law that says the parties can contract for other methods of service and the lease is a contract.
So if the lease states that the landlord can post the notice on the unit door and the tenant has signed that lease that means you have contracted with the tenant to allow for other methods of service including posting and then you can post on the unit door. So general rule you cannot post unless it’s vacant and abandoned. However, if your lease says you can post and you are outside of Cook County, then you can post. Let’s talk about Cook County and Chicago, Cook County, and Chicago, both the RTLO or RLTO and the eviction judges prohibit posting notices. Chicago is absolute, they will not allow us to go forward with posted notices except for a very slim exception. Cook County it’s kind of a mixed bag but um, the RTLO has some language about posting and other methods of service that is being enforced more and more. So I do not recommend that any of my clients be the Guinea pig and tempt the judges to dismiss their cases with posted notices. So my recommendation is Cook County and Chicago personally serve your notices. The question I get and the problem you guys have out on the front lines is you will go to a unit 10 or 15 times trying to get personal service and you can hear the TV on, you can hear people whispering, you know they’re in there and you are, you know that they are evading service of that notice. So what do you do? Your only option is what we call due diligence. In order to have any basis to post your notice and try to get this through in Cook County past the eviction judges in Cook County and Chicago to keep track of the date and time of every attempt at personal service.
After 10 to 12 attempts at personal service, you want to go to different times of day and different days of the week. We don’t want the judge to say well you want every day at 10:00 a.m. they’re obviously at work. We want you to try seven in the morning and 6:30 at night. So get your concierge involved, and get your maintenance involved to try service outside of normal business hours. If you are unable to get service on different days of the week, different times of the day, let’s say between eight to 12 different attempts, then you can post the notice on the door. I recommend that you also mail it by regular mail. Don’t go certified with the green card registered mail. The judges, if you send certified mail the judges require a copy of the signed green card showing a legible signature of one of the named leaseholders. That is very difficult to come by so I don’t recommend certified mail. It takes a while to get the green card back and then you get a green card with a scribble on it and you can’t make out who signed it. So not certified, post it on the unit door, send it by regular mail, and email it to the tenant if you have a valid email address for the tenant. At that point when you turn over the eviction to us, you’re going to send like normal the lease, the account ledger, and the signed served notice with posting checked off in that affidavit of service along with the list of all of the dates and times you attempted service and the date you posted mailed and email, we will prepare what we call an affidavit of due diligence. I will say I’ve heard other attorney’s offices, they have different names for it.
The name is not specified in any Illinois statute so we all kind of call it whatever we want. We call it an affidavit of due diligence showing your due diligence in trying to serve the tenants and we will have you sign off on that. It does not hurt in addition to what you have done to also hire a process server and we will have the return of service from the process server showing five to eight more attempts by a professional licensed detective that won’t hurt by any means and we attach all of that to the eviction lawsuit to show the due diligence in trying to personally serve before we post it. Now I say all of that because that really is your only option when a tenant is evading with the caveat. There is always a risk of dismissal in Cook County in Chicago if the notice is not personally served. So, just know that there is always a risk. It is not ironclad the affidavit of due diligence personally serving your notice is the only foolproof ironclad way to serve a notice. Quick question, how do I prove that I served the notice? I do get this question and I’m going to address it quickly. I have clients who ask do I need to have the tenant sign that they received it. You do not. In every good five-day notice there is a portion called the affidavit of service or proof of service and it says “I fill in your name on fill in the date, served this notice by this method.” There are four options for personally serving on the named tenant with a line. You write in the name of the tenant personally served by a resident who lives in the unit age 13 or older with a line you write in the person you served it on if it is not one of the named tenants.
The third line is certified mail, I gave my reasons why I don’t think you should do certified mail. And then the fourth line is posting, then there will be a signature line for you to sign off that you served it in that method and either your five-day notice will have a notary section where you have to bring it to a notary to notarize your signature or there might be a statutory verification section with your own signature where you can verify the truth of your own statements. So, you do not have to have a tenant sign that they received the five-day notice. Your affidavit stating how you served it is good enough. I say good enough if the tenant in court says I never received it, we may need you to come in and testify how you served it on them, but as far as filing the case, we do not need you to have the tenant sign it.
Alright, next question I get all the time or I don’t get the question and the client just does it and we’re Kind Of Upper River. Upper River without a paddle I think is the saying in eviction court. So the question is can I accept a partial payment after serving a five-day notice? The short answer is yes you can accept a partial payment but it depends on where the property is located, and whether that’s going to affect our eviction case. The statutory language that every five-day notice in Illinois must have is there in the middle it starts with all caps only full payment of the rent demanded in this notice will waive the landlord’s right to terminate possession unless the landlord agrees in writing to continue the lease in exchange for partial payment. So, this statutory language actually protects landlords and says only full payment made within five days is going to waive the landlord’s right to proceed.
So, in most counties, you can accept a partial payment under that statutory language as long as your notice contains that statutory language without affecting your right to evict. So you should always check with your attorney if you can accept a partial payment after you serve a five-day notice whether it’s going to affect your eviction case or your eviction rights. On the flip side, I do want to say, and I want you to know if you want that money in hand, take it and issue a new five-day notice for the remaining balance. My recommendation is always to turn off the tenant portal payments and the options to make automatic payments. Make sure everybody in your office knows that this file is flagged, that you’re only accepting a full payment, or that you’re issuing a new five-day. By doing that, the tenant actually has to come into your office to make payment.
So they’re either bringing payment in full in that you can see fantastic or they’re going to bring a partial payment in, in person. And if you want to accept that partial payment, your best practice is to say well thank you, let me write you up a receipt. And you head back to the back of your office and you write up a receipt as well as a new five-day notice for the remaining balance and you hand him both and you have now served a new five-day notice for the remaining balance and that clock starts ticking. He’s got five days now to pay that balance off and you’ve got some money in hand. So that’s your best practice for accepting a five-day notice. But what I’m talking about is how is that going to affect your right to evict if you really want this tenant out and you accept a partial payment.
Just to recap, in most counties, you can proceed as long as your five-day has that only full payment language in it. However of course it’s the law, so there are always exceptions, there are always gray areas in Cook County and Chicago. It’s always Cook County and Chicago. Isn’t it? Local ordinance Cook County RTLO Chicago RLTO supersedes and accepts any payment after service of the five-day notice reinstates the tenancy in Chicago, the RLTO says you cannot accept any payment and still proceed with your eviction. In Cook County, it says you cannot accept or hold payment and proceed with the eviction. So if a payment comes in, let’s say somebody in your office didn’t realize it and you Ted walked in, gave a check, walked out and you’re sitting there with this check if you are in Chicago, our advice is don’t deposit it, let us know because we’ve got the eviction case going and we’ll get permission from the judge for you to deposit that payment without it affecting your eviction case.
All we need is permission from the court for you to deposit that payment so you’ll be okay, we just need that permission. In Cook County, the RTLO says you cannot accept or hold a payment if you by accident inadvertently somehow receive a payment from the tenant while the eviction case is going. You need to return it immediately either in person with a receipt that you returned it or by some type of delivery service that you can track and have it signed for a FedEx to make sure that we can show that you immediately returned it and you did not accept or hold any payment to proceed with your eviction. Can I accept rent after serving other termination notices? We’re going to talk about accepting payments after 10 days. Outside of Cook County, it’s very much the same as Chicago. You may be able to accept rent without affecting your right to evict check with our office. It usually depends on the judge in that county it should not affect your rights because that’s not what you’re terminating for. However, there are some judges who do believe that accepting any payment reinstates the tenancy. So outside of Cook County and Chicago, check with our office. Cook County suburbs and Chicago have language in their ordinances that controls this and they’re a little bit different and it’s an interesting distinction in the Cook County suburbs outside of Chicago. So this is Cook County, RTLO is in effect here. It says “If the landlord accepts rent including holding payment knowing that it alleges a lease violation.” Any lease violation including defaults in rent, then the landlord waives the right to terminate and gives up their right to go with the eviction. So in Cook County, you cannot proceed with the eviction if you accept rent after any lease violation.
So Cook County suburbs do not accept payment after service of a 10-day notice ever. Until we get permission from the court, I’ll say we will get permission from the court so that you can accept payments. The Chicago RLTO is a little bit different. Chicago RLTO says if the landlord accepts rent knowing there is a default in payment of rent. So it doesn’t say knowing there’s any lease violation, it only talks about if there’s a default in payment of rent, and then you give up your right to proceed with eviction. In Chicago, you should be able to accept payment of rent after a 10-day notice. That being said, the eviction judges in Chicago, let’s just say interpret that provision differently. So in Chicago, it is safer not to accept payment after service of a 10-day notice, but if you do, if inadvertently a payment comes in or it’s an electronic payment you didn’t realize it slipped through, there is an argument to be made that it does not affect your eviction rights under the RLTO. But as a general rule, in Cook County and Chicago, I advise against accepting payment after service of attending notice. Let us know that the tenant wants to make payment and we will get permission from the judge and then you will be able to move on with the eviction continuation of that question. Can I accept rent after serving other termination notices talking about termination of tenancy, non-renewals terminating a month-to-month tenancy if you accept rent after the expiration of that tenancy? So after the lease term ends, the lease term that you have non-renewed. When that lease term ends do not accept rent, you terminated a month-to-month tenancy and it is at the end of that period the expiration of that tenancy. Do not accept rent past the date that the tenancy has ended by accepting rent after a tenancy has ended, you have created a new month-to-month tenancy which would then require a new termination notice.
And you may know in Cook County it’s a 60-day termination notice for month to month in Chicago we’ve got this fair notice amendment where it’s 30, 60, 90 days. So it could be a while that you are stuck with this tenant again if you accept payment after that tenancy has ended. So that’s a hard and fast rule. Does not depend on the judges, doesn’t depend on what county you’re in. If you are terminating a tenancy by non-renewal at the end of a specific lease term or terminating a month-to-month tenancy, you can accept rent through the end of that lease term or tenancy but don’t accept rent after that tenancy has ended. You’ll be reinstating the tenancy. What if they are paying you past due rent after the tenancy ended? You can accept past due rent as long as it specifically states that it is covering prior months of rent. Be careful. Judges like to apply payments to the current month that’s due then past due rent, then other charges due under the lease then late fees, and then legal fees. That is generally the hierarchy of how payments are applied. So if the tenant gives you a payment for three months back that they’re delinquent on, say please write in the memo of the check that this check covers May 2023 rent or you accept and you write back in an email to their valid email address saying thank you for your payment of a thousand dollars for May 2023 rent. If there is any mistake in the application of this payment for May 2023, please respond immediately. And if they ever try to say they reinstated the tenancy with that payment, at least we have some written proof showing it was not for future payments going forward. What if a tenant wants to pay during the eviction case?
So again, do not accept partial payments once we have filed the eviction case. Do not accept partial payments without permission from the court. The tenant comes to you and says, I’ve got 1,500 bucks, I want to give it to you now you need to let our office know, and hey they want to make a $1,500 payment. We will include or ask the judge’s permission at the next court date and include in the court order that you have permission to accept and deposit a $1,500 partial payment without it affecting your right to evict. So, please follow that rule. Always in Chicago and Cook County, Chicago is an amendment to the RLTO Cook County, it was adopted as part of the new RTLO in 2021. What we call the pay and stay ordinances. The pay and stay ordinances this in Cook County suburbs and Chicago. I know Chicago is in Cook County but it’s like its own beast. So Cook County, suburbs, and Chicago. The tenant has the right to pay the total amount of unpaid rent plus the court costs. That’s the cost of filing and serving the lawsuit. If they do that at any time in the eviction lawsuit up to the time the eviction order is entered, they get to stay in the property and we have to dismiss the eviction case. So three important things for you guys to know about pay and stay in Cook County and Chicago. The tenant has to pay only the unpaid rent balance and court costs, not the late fees and attorney’s fees to invoke this right. Now, if you are entitled to attorney’s fees, which is very limited in Chicago, that’s never Cook County. It would only be if you entered into the lease prior to June 1st, 2021 when the Cook County RTLO came into effect and your lease says you are entitled to attorney’s fees and it’s an older lease like that.
So it’s only that really narrow sliver where you’re entitled to attorney’s fees. The fees and the late fees can stay on the ledger. The tenant would still be responsible for them. But if they pay the delinquent rent and the court costs, we have to dismiss our lawsuit and you do not get to evict them anymore. So that’s one. Two, they only have this right before the eviction order is entered by the judge. So we go through the eviction case, and the judge enters the eviction order, we then place that order with the sheriff for the sheriff to come out and actually evict them from the property. The tenant has the pay and stay right up until the point that the eviction order is entered. They do not have that right while you are waiting for the sheriff to come out. So if the tenant comes to you a week before the sheriff is going to come out and perform that eviction and says, I’ve got payment in full, I want to stay.
It is up to you whether to accept it. You have the right then to say no, I just want you out. You don’t have that right anymore. So keep that in mind. After that eviction order enters while we’re waiting for the sheriff, they no longer have the pay and stay right. The third important thing to know is a one time, they only get to invoke this right one time while they’re living in your community. Under that lease I’ve had questions, what if they transfer units? Do they get to do it again? It’s a little bit of a gray area, but as long as they’re your tenant, let’s say they only get the right to use it one time. We are very careful when we are doing a dismissal order for pay and stay like under a pay and stay scenario. We add language, that this is being dismissed pursuant to the pay and stay ordinance and we cite the ordinance. We also flag our files to show that the tenant already used their right to pay and stay. I don’t even know how many times already we have had tenants use their right to pay and stay and the first of the following month they don’t pay their rent that month and we have to file a new eviction lawsuit. They do not have the right to pay and stay the second time around. So if you are a habitual delinquent, you do not have to suffer through this over and over one time and that’s it. Practical application when a tenant offers to pay in full, is important for you to get your court costs. In order for them to pay and stay in the property and get that eviction case dismissed, they have to pay the court costs and in Cook County, we’re looking at three $400 for a filing fee.
Several hundred dollars for the sheriff to serve maybe a processor were on top of that because the sheriff didn’t get service. So you’re looking at eight, nine hundred dollars extra that you could be losing if you just take the unpaid balance of rent. So really quickly, if we’re working with you on the eviction, shoot us an email quickly and say hey, they want to pay in full. What’s the amount of court costs we can send you an email back quickly with the amount of court costs to add to your balance. I will say as an aside, we are working with the developer of our client eviction portal to add a tab on the left-hand side so that you can very quickly look up your eviction court costs without even having to send an email. So as soon as that is up and running, I’m going to be very excited to announce that because that will help in these situations immensely. So, make sure you are getting your court costs. Also, be careful if the first court date is in the following month. So if we do pay and stay, we have to dismiss the eviction case. But if the eviction court date is in the next month when we’re going to dismiss, make sure you are adding the following month of rent and say, hey, we’re going to dismiss this case on October 16th. Your balance as of the date of dismissal will be X in rent, including October’s monthly rent and the court costs. So practical application is important. Question six. Am I required to accept rental assistance during the eviction process? The simple answer is no. The landlord’s portion of the rental assistance application includes what they call the landlord agreement. It is a contract with the government agency giving you the rental assistance and under Illinois case law, the court cannot force you to enter into a contract.
So, almost across the board, the judges agree, that participating in rental assistance is at the landlord’s discretion. If you do not want to keep the tenant, you are not required to accept rental assistance. Lake County, the judge has been requiring the landlord to participate in rental assistance under the guise of the landlord’s duty to mitigate the tenant’s damages. We are working to educate the judge that there is a contract involved. I’m pretty sure the judge is not aware that the landlord actually has to sign a contract with the government agency that subjects the landlord to indemnification and liability provisions. So hopefully in Lake County, the judge will be coming around soon. But other than Lake County, you absolutely have no obligation to participate in rental assistance if you do not want to. Keep in mind, if you do apply for court-based rental assistance and it’s granted, you cannot charge late fees, attorney’s fees, or court costs from March 2020 through the date that the funds are applied. Often they give rental assistance funds for three months in the future. So any attorney’s fees, late fees, or anything in that whole time period will have to be waived and you cannot proceed with eviction. We have to dismiss our eviction case even if the amount granted is less than what’s owed. So sometimes you apply in May and you give them the balance that’s due as of May, and you don’t get a response until September and that money comes through in September. Well, by now the balance has gone up quite a bit and the amount you received does not pay it in full. Doesn’t matter. We still have to dismiss the eviction case. Just be aware, be educated, be knowledgeable about rental assistance. If you are fine with that tenant and you just need that money in your pocket and the tenant’s a good tenant otherwise, and you want to keep the tenant apply for rental assistance, by all means, it is a fantastic program that has helped thousands of landlords and tenants.
But if it is a tenant that you do not want to keep, maybe there are other issues, maybe there are habitual delinquents, and the first of the next month they’re not going to pay their rent. You are not obligated to participate in rental assistance because if we completely stop the eviction process you’ll also have to waive court costs and late fees. Here’s my favorite one to answer because I answer it once a day. What is this ERP program and why is my eviction taking so long? I wish I had better responses for you. The ERP program is the Cook County Early Resolution Program. So during the pandemic, the Illinois Supreme Court came out with an order that said every eviction courtroom every eviction system, and every circuit court in Illinois has to come up with some type of mediation program for their eviction cases. Cook County came up with the ERP program, so aptly named the early resolution program, which, yes, I’m being ironic because there’s absolutely nothing early about it whatsoever. It has extended the length of eviction from 60 to 90 days to six to eight months this is the average time for an eviction now in Cook County, especially Chicago. So be prepared if you are entering an eviction into the world of evictions in Cook County and Chicago you will have an extended time in eviction court. There’s nothing we can do about it. In Chicago, just so everyone kind of understands the logistics. Chicago had, well still has five eviction courtrooms before the pandemic. When we filed an eviction case, it was assigned to one of those five courtrooms. We could pick the day of our return so that we could have all of our first return dates on one date and it would be amongst any of those five courtrooms.
So all of the eviction attorneys filing cases, all of our cases were allocated among five courtrooms. When the ERP program came into place, they placed mediators in the eviction courtrooms that were part of the program. The ERP program was to have mediators attend court every single day for the tenants to talk to, to try and resolve these cases between the landlords and tenants due to funding issues. Cook County stated that they could only afford enough mediators to cover one courtroom. So, all of those eviction cases that had been spread among five different courtrooms now are filed in one courtroom. So the eviction call is very long. When this first started, we couldn’t get a first court date earlier than 90 days out three months before you got your first day in court. We are now, it was 60 days for a long time. They got the 90 down after maybe three to four months to about 60 and for about a year and a half, it’s been 60 days before you would get into court. And just in the last month or two, we are seeing 30-day court dates now. So that’s very exciting we used to do a three-week return date, but we’re taking 30 days now because it’s better than 90. So there is a long date because it’s the first time that there is availability on the judge’s calendar in the one courtroom where all of these cases are getting filed. Once we get service remember first we have to go service with the sheriff in Cook County and the sheriff isn’t always successful, so then we have to try a process server once they’re served. If the tenant appears in court, they have an automatic ERP continuance for 30 days, giving the tenant an opportunity to talk to the ERP mediator and apply for rental assistance, whatever it may be.
So if the tenant appears in court, there is going to be an automatic ERP continuance of 30 days. There’s nothing we can do about it. There’s nothing no anybody can do about it. That’s how it’s, if we come back to the ERP court date and we have not resolved the case, then the case will be transferred to an eviction courtroom where a judge can finally hear the substance of the case. Now those transfer orders, all the judge says in the first courtroom is, alright, this will be transferred to an eviction case. You’ll get the order and that’s it. We have to wait for the order to be emailed to us to tell us when that date will be and what courtroom we will be assigned to. We go to that courtroom, we work it out either we come to an agreement or we have a trial, a hearing before the judge and we get our eviction order. The other issue we are having that is pandemic related is that we are not in person in court except for in-person trials. Otherwise, if we are entering a default eviction order, if the tenant stops showing up in court, those transfer orders where we are waiting to find out what court date and what courtroom we’ll be in, we’re on Zoom. And so back in the day, we used to write up our eviction order, hand it to the judge, the judge signs it, we go over to the clerk, the clerk stamps it for us and we walk away with a paper order for our eviction that we can give to the sheriff to place the eviction and get the sheriff to come out and actually evict these people. That’s just not reality anymore because we’re on Zoom. So we get off Zoom, we get our eviction order right?
The judge says, here’s everything I’m granting you as far as eviction. We get off Zoom, we prepare that order, and submit it via email to the clerk. Then it goes to the judge behind the scenes. The judge signs it, it gets back to the clerk, and the clerk stamps it, and then emails it back to us. Sometimes that process takes four days, sometimes that process takes four weeks. Totally random. We’re not sure why some orders come back immediately and some take a lot longer. So the problem we have, we have that seven-day stay date where the tenant is supposed to move out by a certain date and if they don’t, then we get to place it with the sheriff. Our clients will say, hey, they didn’t move out, place it with the sheriff. And we’re like, okay, we just need to get a copy of that eviction order. And so, we have somebody in our office, um, who’s literally emailing the clerk’s office on a daily basis with the list of case numbers or it’s actually a different email for every case number where we’re missing orders, getting those orders back. So there’s a delay there as well in us just trying to get a copy of the order that we can give to the sheriff. So these Cook County delays have been very frustrating. I feel you, I know when a client asks, why my eviction is taking so long that it is coming from a place of gut-wrenching pain because I know that feeling in my stomach as well. The program is set to expire at the end of this year. However, there is talk that it may be extended an additional year, just hold it on. We may be in this a bit longer, but I hope that gives you some insight as to why evictions are so much longer than they were pre-pandemic.
I went into great detail about the Chicago Cook County Program, but the Mandatory Mediation Program exists in every single county. So if you have tenants who show up in court and say, I’d like to talk to a mediator, I’d like to have a mediation, the case will go through a mediation program whether we like it or not. I hope that kind of gives you some insight. I know it doesn’t make you feel any better, but I always feel like knowledge is power, and giving you guys that information equips you to prepare yourself as you enter the eviction world. God forbid you have to. What if my tenant moves out leaving a large unpaid balance? This happens a lot with Skips. One, you have the right to send the balance to a collection agency. That’s no problem. Collection agencies usually work on contingency. You can also file a lawsuit for a money judgment. Having a money judgment allows you to garnish wages and bank account funds. In an eviction lawsuit if it’s for non-payment of rent if we’re evicting for non-payment of rent and we’re able to get personal service on the tenant either with the sheriff or a process server, then we can get the monetary judgment as part of the eviction order and we kind of save that extra step. So we might be able to get a monetary judgment. Just keep in mind, we’d have to get personal service so it could delay the case in issuing extra summons to try to get service. You do have the right to kind of waive the money and get a possession order a little bit quicker. If we are in eviction court and you always have the right, if the tenant is a skip or if we evict them for other grounds besides money to file a separate breach of contract lawsuit, which would result in any monetary judgment that can then be used to garnish wages and bank account funds.
There are pros and cons to both a collection agency and using a collection attorney to get you the money judgment and garnish collection agency is going to cost you much less, but you’re not necessarily going to have an attorney working on the file. They’re not going to be garnishing wages. They’re just going to be kind of badgering the tenant until they pay. Whereas the lawsuit and having a judgment for the money might cost you a little bit more, you will have, if they have a job, you can garnish their wages, and you can freeze their bank accounts and take that money. So there’s a higher chance of actually getting money back, but it’s going to take a little bit longer and cost you a little bit more. So, practical considerations always can you find the tenant if they skipped, if they were evicted, you even know where they are to try to track them down and get money out of them. Do they have any assets? Are they working? Did they go buy a house? Maybe you could put a lien on the house. The idea is, are you going to be okay that you are throwing good money after bad? If you go through this whole process and they file bankruptcy or you find out they actually are not working and they have no money, they’re living in their parent’s basement. Now there is a strong possibility with a lot of these tenants that you will be throwing good money after bad if you are trying to collect. I’m not saying don’t do it. Judgments are good. If you go after the money judgment, it’s good for seven years and can be renewed for another seven years. I’ve had clients just kind of flag and Google people or run a skip trace once a year, once every two years to see if are they working now. Have they purchased a home? Go after that money five years down the road. That is up to you if that’s something that you want to do. I want to thank everybody for joining me for our FAQ number two. Feel free to reach out to me directly if you have any questions that are specific to your tenants that you need some clarification on, I am happy to help.
Outro: That was KSN attorney, Jessica Ryan, KSN has provided landlords with affordable comprehensive legal services since 1983. We handle residential and commercial evictions, and building code violations. We review leases, disclosures, and contracts. We can handle third-party disputes with tenants. We address rental property legal concerns, including fair housing, section eight housing questions, and landlord and tenant ordinances. We also provide property tax appeals for rental property owners. If you are a landlord or rental property manager experiencing any tenant issues or legal concerns, please call our office at (855) 537-0500. You can also visit our website, ksnlaw.com. Complete the contact form and send us a message. Thanks for listening.
Please note the material contained in this podcast is for educational and informational purposes only, and does not constitute legal advice. No attorney-client relationship is established by your review or receipt of the information contained in this podcast. You should not act on the information discussed in this 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 in this podcast, the law can change quickly. Accordingly, please understand that the information discussed in this 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 in this 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 accessibility of the article. Generally, this podcast may be considered advertising in some jurisdictions under applicable laws and ethical rules and 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. © 2023 Kovitz Shifrin Nesbit, A Professional Corporation.