Illinois Eviction Process

Guide to the Eviction Process in Illinois

Eviction in Illinois:

Evictions in Illinois are regulated by the Illinois Code of Civil Procedure, and landlords must carefully follow these procedures in order to evict a tenant. There are two main reasons a tenant may be evicted: not paying rent on time or violating a portion of the lease or rental agreement.  Tenants can view helpful pages when they are being evicted> Tenants Help Pages

The State of Illinois has a 5 Step Eviction Process:

1. Sending the Tenant a ‘Notice of Eviction”
2. Filing a Complaint
3. The Sheriff serves the Summons on the Tenant
4. Going to Court
5. The Sheriff removes the Tenant (if necessary)

 

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Notice of Eviction
The first step in evicting a Tenant in Illinois is delivering the “Notice of Eviction.” Depending on why you are evicting the tenant, Illinois has 3 different notice periods:

1. Five Day Notice of Eviction
   The Five Day notice is only used for non-payment of rent. It gives the Tenant 5 days to pay the rent and late fees, or Vacate the premises.
2. Ten Day Notice of Eviction
   The Ten Day Notice is used if the landlord needs to evict the tenant for violating the terms of the lease, such as unauthorized pets, illegal activity, etc. Although it may also be used for non-payment of rent. Generally in Illinois, the Tenant does not have the right to cure the lease violation and stay in the property. However, in the City of Chicago and some other areas, the Tenant may have a right to cure the violation and stay.
3. Thirty Day Notice
   If the Tenant is on a month-to-month lease or an oral lease, the landlord can terminate the lease for any or no reason by simply giving a 30 Day Notice. If the tenant does not leave after 30 days, the landlord must file a Complaint to move forward with Eviction.

Delivering the Notice. The notice may be delivered in the following ways:

• Personally handing the Notice to the Tenant
• Giving the Notice to someone who is at least 13 years old and who is at the Tenant’s home
• Mail the Notice by Certified Mail with a Return Receipt from the Tenant
• Leaving the Notice on the Ground in front of the Tenant if they refuse to accept it
• Posting the Notice of the door of the premises if nobody is living there

Counting the Notice Period. If the last day of a notice period is on a weekend or holiday, then the notice period expires on the next business day. If the notice was delivered by mail, then the notice period begins when the Tenant actually receives the notice.

Affidavit of Service. This is a document the Landlord must sign in front of a notary, by which the landlord is swearing that he property delivered or “served” the Tenant. This form is included with the Illinois Eviction Notice on this site, and will be necessary if you have to file a Complaint against a Tenant for Eviction (next step).

 

Filing the Complaint

If after receiving the Notice of Eviction the Tenant has not paid the rent or cured the lease violation (if they have that option), then the landlord must sue the Tenant for eviction by filing a Complaint with the County Clerk’s Office in the County where the property sits. The County Clerk’s Office will have an Eviction Complaint and Summons for the Landlord to fill out and file. There will be a filing fee when the landlord files this. The Clerk will then give the Landlord a copy of the Summons and Complaint for him to take to the Sheriff’s Office to be delivered to the Tenant.

 

The Summons

The Summons is what the Sheriff Delivers to the Tenant telling them that they have been sued for Eviction. When the Landlord files the Complaint, the County Clerk will instruct the landlord to take a copy of the Complaint and Summons to the Sheriff’s office, usually located nearby. The Sheriff will then deliver the Summons to the Tenant.

 

Your Day in Court

When the Landlord files the Complaint, the Clerk will give him a court date. The Landlord must show up for this court date. The landlord must take to court a copy of the Notice of Eviction, the Affidavit of Service, the Complaint, the Summons, and any witnesses or evidence needed to win the case. The landlord must tell the judge why he is entitled to possession of the property and why the Tenant should be evicted (non-payment of rent, etc.). If the Tenant does not show up, it is likely that the landlord will win by default, and the judge will grant the Landlord an Order for Eviction. If the Tenant does show up, the judge will rule after hearing both sides. After winning an Order for Eviction, the judge usually gives the Tenant 14-21 days to move.

 

Sheriff Removal

If a Tenant still has not moved after the fixed time ordered by the court in the Order for Eviction, the Landlord must go to the Sheriff. The Sheriff might require a deposit or fee, but will ultimately carry out the Order for Eviction and physically remove the Tenant.

 

 

In Illinois, every forcible entry and detainer case or “eviction” must have a lawful basis from which to start.  One of the main reasons for which a landlord has a right to terminate a tenancy and to evict a tenant is for the tenant’s non-payment of rent.  When a tenant who holds possession pursuant to an oral or written lease is not current in the payment of all rent due, the landlord can serve a “Demand for Rent” pursuant to Section 735 ILCS 5/9-209 which reads in part:

A landlord or his or her agent may, any time after rent is due, demand payment thereof and notify the tenant, in writing, that unless payment is made within a time mentioned in such notice, not less than 5 days after service thereof, the lease will be terminated. If the tenant does not within the time mentioned in such notice, pay the rent due, the landlord may consider the lease ended, and sue for the possession under the statute in relation to forcible entry and detainer, or maintain ejectment without further notice or demand.

Basically, this means that a landlord has a right to serve a notice on the tenant demanding that the tenant bring the rent due current.  If the tenant does not make payment in full within the time provided in the notice, the landlord can initiate an eviction procedure in the circuit court.  If the tenant offers the correct amount of rent due during the notice period, the landlord must accept it.

Normally, the notice required is a proper “5 day notice“.  Many leases will change the notice time, so it is important to always consult the lease to determine the length of time a tenant has to pay and to adjust the notice provided accordingly.  In Chicago, if a landlord accepts any rent after the expiration of the five day notice, the notice will be invalid and the landlord will have to start the process over.

 

Written Notices Required

Illinois law generally requires a written eviction notice. The landlord must serve the tenant with the written notice before filing a court case. There are two exceptions:

• A lease can waive the right to notice. Avdich v. Kleinert, 69 Ill. 2d. 1, 370 N.E. 2d 504 (1977); Frocks v. Ziff, 397 Ill. 497, 74 N.E.2d 699 (1947);
• Note: In the city of Chicago, under the Residential Landlord Tenant Ordinance, a lease may not waive the right to notice. Mun. Code Ch. 5-12-140(d).
• If the lease sets a fixed time for its expiration, no written notice is required. 735 ILCS 5/9-213.

If the landlord gives a notice anyway, it must comply with the statute. Local ordinances can also require a written notice, as is the case in Chicago.

 

Service of Notices

Service of notices is governed by 735 ILCS 5/9-211. They can be served in one of three ways in most cases:

• Personal service on the tenant
• Substitute service on someone at the tenant’s home, more than 13 years old
• Mailing to the tenant by certified or registered mail, with a return receipt from the tenant

If no one is living at the tenant’s house, the landlord may post the notice.

If the tenant gets the notice, improper service may be waived. Prairie Management Corp. v. Bell, 289 Ill. App.3d 746, 682 N.E.2d 141 (1^st Dist. 1997). Proof of nonreceipt can be difficult if the service of notice is proper on its face. Sometimes the landlord acknowledges improper service, by, for example, posting the notice when the tenant is in possession.

 

Contents of Notice

Premises Described

The notice must describe the premises well enough so they can be identified. Brite-House Co. v. Cary, 345 Ill. App. 509, 104 N.E.2d 125 (1^st Dist.1952); Worley v. Ehret, 36 Ill.App.3d 48, 343 N.E. 2d 237 (5^th Dist. 1976).

 

Notice of Termination

The notice must say that the tenancy will be terminated. It does not have to use the word “terminated,” but it must make clear that at the end of the notice period, the tenant will lose rights to the home.

 

Certificate of Service

The affidavit of service does not need to be completed on the copy given to the tenant. After the tenant is served, the landlord should complete the affidavit of service and sign in front of a notary. A copy of the notice with a completed affidavit of service and a notary’s signature may be filed with the court file. 735 ILCS 5/9-212.

 

Dates

Date of Service

Notices may not be served until after the default, if the notice is based on a default. Regardless of the date on the notice, the notice period does not begin to run until after service.

 

Date of Termination

Notices do not have to give the date on which the tenancy will terminate. They must give the number of days after service of the notice that the tenancy will terminate. The landlord may give more, but not less, days than the statutory requirement.

Even after the tenancy is terminated, the landlord still must proceed with a court order for the eviction. It is the termination of the tenancy that gives the landlord the right to file a court action seeking eviction.

Until the full notice period given for the notice runs, the landlord cannot file in court for an eviction action. Hoefler v. Erickson, 331 Ill. App. 577, 73 N.E. 2d 448 (1st Dist. 1947).

 

How to Count the Period

The notice period is counted starting with the day after the notice is served and expires at midnight on the last day of the notice. 5 ILCS 70/1.11. If the last day falls on a Saturday, Sunday, or holiday, the last day of the notice period is extended to the following day. If the tenant was served by mail, the notice period starts from the day after the tenant actually received the notice. Avdich v. Kleinert, 69 Ill.2d 1, 370 N.E. 2d 504 (1977).

 

Landlord’s 5-Day Eviction Notice

735 ILCS 5/9-209. A five day notice is given for nonpayment of rent. It must state the amount of rent due and give at least five days for the tenant to pay the rent.

 

Amount of Rent Due

What Rent Is Due

The notice can only ask for the rent that is actually due at the point the notice is issued.

The notice must give a definite amount of rent as due and owing. Weinberg v. Warren, 340 Ill. App. 365, 92 N.E.2d 217 (1st Dist. 1950).

Only rent can be included in the notice. Note, though, that “rent” can potentially include a number of other charges other than just use of the property, including things like utility bills, depending on how the lease is written. Am. Mgmt. Consultant, LLC v. Carter, 392 Ill. App. 3d 39, 46 (3d Dist. 2009).

 

If the Tenant Owes Less than Demanded

If the tenant owes less money than the landlord has demanded, the tenant needs only to pay the actual rent money due and owing to defeat the eviction notice. The tenant must pay all that is due, however; payment of less than what is due will not defeat the eviction, even if the landlord demands more than what is owed. Elizondo v. Medina, 100 Ill. App. 3d 718, 427 N.E. 2d 381, 56 Ill. Dec. 301 (1^st Dist. 1981).

 

 

Payment of Rent Due

Tender

If the tenants can pay the rent due, they should tender the money. Tender is when a tenant offers the rent due to the landlord. Ideally, tender should be made in the presence of witnesses. The tenant should get a receipt if the landlord accepts the money. Tender must be made before the five days are up. Tender will defeat the eviction action even if the landlord refuses the money. Madison v. Rosser, 3 Ill. App. 3d 851, 279 N.E. 2d 375 (1^st Dist 1972).

 

Full payment

If the notice does not contain language saying only full payment will waive the notice, then the landlord’s acceptance of even partial payment may be argued to reinstate the tenancy.

 

Landlord’s 10-Day Eviction Notice

735 ILCS 5/9-210. A 10-day notice is given for violating any lease provision. There is no right to cure a 10-day notice under state law. There is a right to cure under some ordinances. Acceptance of rent for a period after the notice is issued can waive the notice.

 

Lease violations

The violation cited must be a violation of the lease, not a side agreement. Knaus v. Beuck, 331 Ill. App. 356, 73 N.E. 2d 160 (1^st Dist. 1947). Landlord need not specify conduct but must give the “character of the default, ” or a general description of what provision of the lease was violated. Any ambiguities in the lease are construed against the drafter.

Where the 10-day notice is based on nonpayment, the Illinois Supreme Court has permitted the tenant to cure by tendering the rent within the 10 day period. Woods v. Soucy, 166 Ill. 407, 47 N.E. 67 (1897).

Repeated nonpayment or late payment of the rent could also be grounds for a 10-day notice, possibly without a right to cure.

 

Landlord’s 30-Day Eviction Notice

Where there is a month-to-month tenancy or any other tenancy less than a year (but not week-to-week), the landlord may terminate it at any time by giving a thirty day notice. 735 ILCS 5/9-207. The landlord does not need to give any reason for terminating the tenancy. This thirty day notice provision does not apply to tenants in foreclosure, as provided below.

Typical Landlord’s 30 Day Eviction Notice.

 

Annual Leases

Landlords are required to give a minimum of 60 days’ notice of the termination of a year-to-year lease, and no more than six months’ notice. 735 ILCS 5/9-205. Notice must be given within 4 months preceding the last 60 days of that year. This notice provision does not apply to terminating a tenancy of farm land or tenants in foreclosure.

 

Tenants in Foreclosure

For tenants that find themselves in foreclosed property, no matter the length of their lease or when it was enter into in relation to the foreclosure proceedings, the tenant must receive 90 days notice of any change in the lease, renewal, or termination. However, tenants must continue to abide by the lease terms and pay rent to the current landlord during these proceedings. 735 ILCS 5/9-207.5; 735 ILCS 5/15-1224.