Too often at the courthouse, pro se Landlords approach one of our attorneys in the hallway, asking why their lawsuit was dismissed when the tenant hadn’t even bothered to show up. One look at their 5 day notice answers the question. From mandatory statutory language to proper service requirements, the 5 day notice is riddled with technical pitfalls.
A Landlord’s Notice and Demand for Possession gives the tenant a specified time in which to make payment in full of the past due amounts or vacate the property. The statute provides a minimum of 5 days notice, but look to your lease for language that might extend that period. For example, commercial leases often require a 10 day notice.
Your notice must include specific information regarding the tenant, the amount past due, a demand for possession of the property with the property address, amount of time tenant has to pay, and specific language required by statute. The Notice must be signed and dated and properly served.
Illinois case law suggests that the amount of rent quoted in your Notice can be incorrect, but the Notice may still be valid. Even if the amount in your notice is incorrect, the tenant has the obligation to pay something in order to avoid eviction, i.e., what he believes to be due. However, if the Notice amount is incorrect, and the tenant pays what he believes is due and then proves in court that what he paid was the correct amount, your eviction lawsuit will be dismissed, and you will have to pay the tenant’s court costs.
So don’t make this mistake in the first place! Keep accurate accounting records and check and double-check your Notice calculation. If your tenant offers an amount of rent within 5 days that he believes is correct, don’t simply refuse it. Check your records and calculations, and seek our advice on your legal obligations.
Next, don’t wait to serve the notice on your delinquent tenant: the longer you wait, the longer your tenant gets to live for free. It’s not your responsibility to support your tenants. We recommend that the Notice be issued at the first late fee; i.e., if rent goes unpaid when due and is still unpaid at the time the late fee is assessed, then issue the Notice. For one thing, your tenant may be able to come up with one month’s rent, but once the notice reflects 2, 3, or 4 months rent, it will be much more difficult for your tenant to put that kind of money together. Second, if you serve the Notice immediately upon default, you’re letting your tenant know that you don’t mess around when it comes to collecting rent. Quick action will deter future defaults and late payments.
Last, but definitely not least, be sure to wait the required time before filing the eviction complaint. A 5 day notice means that the tenant is entitled to 5 full days to make payment in full of the past due rent. That means if you serve the notice on the 15th of the month, the tenant gets the 16th, 17th, 18th, 19th, and until midnight on the 20th; you cannot file the lawsuit until the 21st. Don’t make the mistake of filing the complaint on the 5th day. If you do, your lawsuit will be immediately dismissed.
Adhering to the requirements of a 5 day notice can be simple if you pay close attention to the technical details. Don’t fall victim to its pitfalls; learn the rules and abide by them. If you do, you’ll pass the first stage of the eviction process.