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The "Cliff Notes" version
by Mel Metts
These tools will help you through the entire eviction process. This information applies only to evictions performed in Lake County, Illinois.
report any errors or broken links to email@example.com.
This information does not constitute legal advice. Contact an attorney before proceeding.
Please do not contact me with questions about your specific situation. I am not an attorney and cannot provide legal advice. I am also not compensated for your phone calls or emails. If you want more information please buy my book . . . and read it!
3. Court Filing
8. Eviction Day
A. Eight Steps to an Eviction for Rent Due
1. Landlord's Five Days' Notice (ToolKit)
The Five Day Notice may not be dated or served on the day the rent is due. Date and serve the Notice on the first day the rent is late, or any day thereafter.
Note: Prepare the five-day notice in duplicate. Use the form provided in the toolkit.
LANDLORD'S FIVE DAYS' NOTICE
You are hereby notified that there is now due the undersigned landlord the sum of_____________________________ Dollars and ________________ Cents, being rent for the premises situated in the ______________________________________, County of Lake, and State of Illinois, described as follows, to wit:
together with all buildings, sheds, closets, out-buildings, garages and barns used in connection with said premises,
And you are further notified that payment of said sum so due has been and is hereby demanded of you, and that unless payment thereof is made on or before the expiration of five days after service of this notice your lease of said premises will be terminated.
_________________________________________________ is hereby authorized to receive said rent so due, for the undersigned.
Only FULL PAYMENT of the rent demanded in this notice will waive the landlord's right to terminate the lease under this notice, unless the landlord agrees in writing to continue the lease in exchange for receiving partial payment.
Dated this ____________________________ day of _________________________, 20_____.
__________________________________________, being duly sworn, on oath deposes and says that on
the ________________ day of _______________________, 20_____ __ he served the within notice on the tenant named
therein, as follows:
Q(1) by delivering a copy thereof to the within named tenant, _______________________________________________.
Q(2) by delivering a copy thereof to ____________________________________________________, a person above the age of thirteen years, residing on or in charge of the within described premises.
Q(3) by sending a copy thereof to said tenant by **(certified/registered) mail, with request for return of receipt from the addressee. (**circle one)
Q(4) by posting a copy thereof on the main door of the within described premises, no one being in actual possession thereof.
Subscribed and sworn to before me this
List all tenants who are named in and have signed the lease; add the language "and unknown occupants." You do not need to serve all of them; if you serve one of them at home (the dwelling you're evicting them from), it is equivalent to serving them all.
Serving multiple tenants
Let's say you are evicting Joseph and Mary Smith. Under the law, each tenant must be served. However, substitute service is permitted if the service is performed at the tenants' dwelling. By serving Mary Smith at their dwelling, you have also legally served Joseph Smith.
Serving Mary Smith at her place of work, however, does not satisfy the definition of substitute service. You would still be required to personally serve Joseph Smith, either at his place of work or wherever you can find him.
Service requires that you are face-to-face with the person you are serving. You do not need to put the notice in his hand if he refuses to accept it. You may drop it on the floor or tape it to the door, provided you have seen the tenant face-to-face and attempted to give the notice to him.
Any adult can serve the Five Day Notice. It does not need to be the landlord, sheriff or other professional. It could be another tenant from a different dwelling within the same building, or a neighbor or friend.
Any resident over 13 years old may be served at the tenant's home. If the parent is not home, you may serve the child, provided he/she is over the age of thirteen.
Once served, the tenant has five intervening days to pay the rent before you can file the court papers. If you serve the tenant on Wednesday, you must wait five days (i.e. Thursday, Friday, Saturday, Sunday, Monday) before filing the papers the following Tuesday, which is the sixth day. If the fifth day falls on a weekend or holiday, you must wait one additional day.
During the Five Day Notice period, the tenant has the absolute right to pay the full rent demanded, thus prohibiting you from proceeding with the eviction. After the Five Day Notice period has elapsed, the tenant has no right to prevent the eviction, even if he pays the rent in full -- provided you have filed the court papers. [top]
2. Notarized Affidavit of Service
Before you file the Court documents, you need to prove how and when the Five Day Notice was served. The lower half of your Five Day Notice (the duplicate of the Notice served on your tenant), comprises an Affidavit of Service. Some Five Day Notices may have the Affidavit of Service printed on the back side of the form.
Illinois law requires proof that legal notices have been properly served. In most cases, this requires that a law officer or other properly licensed official performs the actual service and then certifies, on oath, to having done so. In eviction cases, however, the burden of proof is less stringent; the law allows civilian service and a notarized Affidavit of Service to be sufficient proof. The court considers this prima facie proof of service.
The person who actually served the tenant is required to sign the Affidavit in the presence of a notary. Before meeting the notary, fill in the form completely, leaving the signature line blank.
Let's say that you are Michelle Landlord, and that you served the Five Day Notice personally, on February 3, 2002 at their residence. The Notice was served to Mary A. Smith who lives with Joseph P. Smith as co-tenants. You would complete the Affidavit like this (underlined in blue):
Note that the Affidavit of Service is never completed until the five-day notice has been served.
Michelle Landlord, being duly sworn, on oath deposes and says that on the third day of February, 2002, she served the within notice on the tenant named therein, as follows:
X (1) by delivering a copy thereof to the within named tenant, Mary A. Smith.
X (2) by delivering a copy thereof to Mary A. Smith for Joseph P. Smith, a person above the age of thirteen years, residing on or in charge of the within described premises.
___ (3) by sending a copy thereof to said tenant by certified mail, with request for return of receipt from the addressee.
___ (4) by posting a copy thereof on the main door of the within described premises, no one being in actual possession thereof.
Subscribed and sworn to before me this
Bring a copy (not the original) to the courthouse when filing the eviction paperwork. Also, bring a copy of the written lease. Ask the clerk to include both documents in the court file.
|Finding a Notary
Most banks will provide free notary service, provided you have an account with them. Many banks don't even ask if you're their customer. You can also get free notary service from the Lake County Clerk (not the Clerk of the Circuit Court), on the first floor of the courthouse, at 18 North County Street. The Clerk of the Circuit Court will also provide notary service, for an additional fee. [top]
3. Court Filing
The Clerk of the Circuit Court is located at 18 N. County, Waukegan 847-360-6600. Enter from Washington Street.
You will have to pass a security checkpoint, so you may want to leave any nonessentials outside. Knives, scissors or any item that might be used as a weapon will be confiscated by security personnel. Follow the steps to the basement.
You will need to prepare two sets of documents: the Complaint in Forcible Entry and Detainer, and the Summons. Also, bring a copy of the notarized Landlord's Five Days' Notice, and a copy of your lease. Give these copies to the clerk when you file the Detainer and Summons.
Complaint in Forcible Entry and Detainer (Eviction)
Complete this form in advance, or at the courthouse. Be sure to make sufficient copies, usually one original plus four copies is sufficient. If you use the forms provided by the Clerk, be sure to add these words to the last paragraph of the Complaint (added words underlined in blue): Wherefore, plaintiff(s) pray judgment against the defendant for possession of said premises, and for the sum of $XXX.XX and costs of the suit, plus all rents accruing through the date of trial.
If you complete this form in advance, you can get it notarized before going to the courthouse, saving the notary fee. [top]
Complete this form in advance, or at the courthouse. Be sure to make sufficient copies, usually one original plus four copies is sufficient. If you use the forms provided by the Clerk, be sure to add these words under the line for Amount Claimed: Plus costs of suit and all rents accruing through the date of trial. The Clerk provides two forms: white for the original, and yellow for the copies. (The printing on the back of the original is different from the printing on the back side of the copies.)
You choose the court date, subject to availability (check with the clerk before writing the date on the form). Allow seven to ten days from the filing date to the court date, depending on whether you use the Sheriff (slower) or process server. The court date may not be on a weekend, holiday or Thursday. You can choose a court time of 9:00 A.M. or 1:30 P.M. The 9:00 A.M. court call is usually lighter; you can get in and out more quickly. I prefer 9:00 A.M., because some of my deadbeat tenants are still sleeping. Choose a date and time convenient to you, because you will have to appear in person.
Note that you must check the return date availability with the Circuit Clerk; the number of cases scheduled per day are limited.
Take the forms to one of the windows marked Civil Process. Bring cash to pay the filing fees (see filing fee schedule); a Cash Station is also available. Discover Card is accepted, for an additional service charge. No checks accepted.
The clerk will assign a case number, stamp the forms and give you a receipt. The clerk will keep the forms she needs and give all the others back to you.
Once the case is filed, you need to get the tenant served again. This time you must hire a professional. [top]
Complaint for Holding Over
A tenant who refuses to leave at the end of her lease is deemed to be "holding over." Provided she has previously been served with proper termination notice, additional notice is not required. Simply file the Complaint for Holding Over (here's an example) and the Summons.
Illinois law provides double rent for tenants who are holding over. Be sure to ask for double rents in your complaint. [top]
4. Serve the Tenant
The Summons and Complaint must be served by the Sheriff or by a licensed process server (usually a private detective agency). I recommend using a licensed process server instead of the Sheriff, because he will work harder to get the job done. Lake County has several process servers; some are listed below, in alphabetical order:
911 Grand Avenue
Waukegan, IL 60085
D & D Investigations
Darryl & Deborah Lewallen
Illinois Process Service
33 N. County Street
Waukegan, IL 60085
If you use a process server (instead of the Sheriff), you may be able to fax the complaint and summons to him. Generally, you don't pay the process server until service is completed (but the Sheriff requires payment in advance).
The tenant must be served at least three days prior to the court date. Defendants are supposed to file an Appearance before the court date ("return day"), but rarely do. Nevertheless, you are supposed to provide them with a blank Appearance form when they are served with the Complaint and Summons. Blank Appearance forms are available from the Clerk of the Circuit Court.
Once the tenant has been served, the process server must provide you with "Proof of Service." Bring this Proof of Service to court with you on the return day. (If the Sheriff is used - and has successfully served the tenant(s) - he will file the proof with the Clerk of Circuit Courts so it will already be in the case file for the judge to review). [top]
5. Your Day in Court
Arrive at the courtroom on the day and time you wrote on the Summons. There will be no trial today; today is referred to as the "return day."
The purpose of the return day is to see if the defendant (your tenant) has filed an Appearance.
If the defendant has filed an appearance and is not present on the return day, the case will be set for trial in one week.
If the defendant has not filed an appearance and is not present on the return day, you can ask the judge for "default judgment." This will almost always be granted provided your documents are in order.
The judge will rule in your favor, and "stay" the possession order for several days (usually not more than one week). Immediately follow the steps below to schedule the eviction to be conducted after the stay expires, because the Sheriff is always backlogged.
If the defendant has not filed an appearance but is present on the return day, she will appear before the judge (with you). The judge will ask her if she owes you the rent amount claimed in your complaint.
If the tenant admits the debt, the judge will usually order in your favor, and "stay" the possession order for several days (usually not more than two weeks). Immediately follow the steps below to schedule the eviction to be conducted after the stay expires, because the Sheriff is always backlogged.
If the tenant denies the debt, the case will be set for trial in one week. The judge will instruct the tenant that she must file an appearance before the trial day. If an appearance is not filed, you will normally win a default judgment on trial day (even if the defendant appears for trial).
Evictions and small claims are heard in Courtroom 306 of the County Building, 18 North County Street, Waukegan, Illinois 60085. Enter from Washington street and take the elevator to the third floor. You can expect the same security procedures previously described.
After you pass security, check the monitors to ensure that your case is on the docket.
Be sure to bring the following copies with you to court (be sure to retain the original of each document for your records):
|The Landlord's Five Days' Notice (in case the judge requests it...never give the judge the original)|
|Copies of the Complaint|
|Copies of the Summons|
Copy of the lease
Also, bring the original Proof of Service for the Complaint and Summons (provided to you by the Process Server). Keep a copy for your records.
Yes, you already provided a copy of the lease and the Five Day Notice when you filed the case. Bring copies to court anyway, in case the judge asks for them again.
Before you enter the courtroom, turn off your cell phone and pager.
As you enter the courtroom, check the rack of blank forms right inside the door. You want a blank form called FORCIBLE ENTRY / DETAINER ORDER. Grab one, find a seat on the benches, and fill out the Order. Here's how:
IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT,
LAKE COUNTY, ILLINOIS
FORCIBLE ENTRY / DETAINER ORDER
Plaintiff(s) _X_ present __ not present, Defendant(s) __ present __ not present, in open court; this matter coming for __ Trial _X_ Return Date, and the Court having heard and determined the issue thereof, finds Plaintiff(s) entitled to possession of the premises described herein;
IT IS THEREFORE ORDERED AND ADJUDGED:
that the Plaintiff(s) Mike and Michelle Landlord have and recover of and from the Defendant(s) Joseph P. and Mary A. Smith possession of the following described premises: 443 West Cove Road City/Village of Mundelein Apt./Unit No. 36 Zip Code 60060.
ENFORCEMENT of possession is stayed until (LEAVE BLANK FOR JUDGE) .
IT IS FURTHER ORDERED AND ADJUDGED: that
Plaintiff(s) Mike and Michelle Landlord recover from Defendant(s) Joseph P. and Mary A. Smith damages in
Be sure to substitute your actual filing and service fees instead of the examples above, and mark whether the defendant is present or not present. Leave the Enforcement date blank, as well as the Judgment Amount.
You can print the above form as an example, but you need to complete the actual form provided by the court. The actual form has three copies (carbonless form); the original goes into the court record, the second is for the plaintiff, the third is for the defendant.
When your case is called, immediately stand and call out your name. In this example, the judge calls the case: "Landlord versus Smith." You stand immediately, and repeat your name, "Landlord." Approach the bench; the plaintiff (that's you!) usually stands to the left.
After you approach the bench, repeat your name again, and hand the Proof of Service to the judge.
If the defendant is not present, the judge will rule in your favor, and stay (delay) enforcement for seven days. The judge may ask for other documentation, such as a copy of the Five Day Notice. Provided your paperwork is error-free, the ruling will be in your favor.
If the defendant is present, the judge will ask him/her if they owe the rent that you claim. If the defendant agrees that the rent is due, the judge will rule in your favor, and usually stay (delay) enforcement for fourteen days. If the defendant disputes your claim, the judge will set the case for trial in seven days. He will also instruct the defendant that they must file an Appearance, or the case will not be heard.
Once the judge is finished with you, he will hand the Order to his clerk. The clerk will give your copies to you. If the tenant was not present, you are expected to mail his copy of the Order to him (regular mail).
If the case is set for trial, you must return on the trial date. If the judge rules in your favor (either now or after the trial), you must get the order Certified. The Certified order is valid for 90 days. [top]
The Agreed Order - A Last-minute Resolution [Sample Form]
The best of all worlds is if you can negotiate an agreement with the tenant before going in front of the judge. The agreement is spelled out in an "Agreed Order." When your case is called and you approach the bench, tell the judge that you have an Agreed Order, and hand it to him to review and sign.
Judges love Agreed Orders.
The agreement can include anything both parties want to include, including a schedule of rent payments, an agreed move-out date, etc. [top]
6. Certify the Order
The Order is not valid until the Clerk of the Circuit Court certifies it. You must wait 24 hours, then request a Certified Copy of the Order from the Clerk of the Circuit Court. The clerk will "certify" the Order, and relieve you of some more money (currently $6.00). Take the Certified Order directly to the Sheriff. [top]
7. Schedule the Eviction Move-out
Don't delay. Take the Certified Order directly to the Sheriff, at 25 S. Martin Luther King, Jr. Avenue, Waukegan, Illinois 60085. Go to the Civil Process window.
The Sheriff will only schedule one eviction per day per city/village. You will find that the Sheriff has already scheduled evictions several days into the future, and you will need to take the next available date that follows the date on the Order. Often the first available date will be several days after the date on the Order.
Ask the Sheriff's clerk for a photocopy of the Order, because he/she will keep the certified copy. You will also receive a receipt (did I mention that you need to bring money?) for posting the eviction notice, which is non-refundable, and a copy of the Eviction Procedure. Click link at top of page for the Sheriff fee schedule.
OFFICE OF THE SHERIFF
GARY DEL RE
Please provide 1 certified copy of eviction order, and 1 additional copy to the Sheriff's Civil Process Division. Fee for "Final Eviction Notice" posting must be paid in advance. Actual date of Eviction will be scheduled at this time.
In the event the defendant (TENANT) moves prior to the eviction date, you must contact the Sheriff's Civil Process Division at (847) 377-4400 at least one (1) hour prior to the scheduled eviction time.
If the Sheriff's Civil Process Division executes the eviction, the following charges will apply:
$59.00 per Deputy hour any portion thereof.
.42 per mile from Sheriff's Office to the Eviction site.
It is the landlord/plaintiff's responsibility to provide a minimum of 3 capable movers. The landlord/plaintiff will provide plastic bags as well as rolls of plastic in the event of inclement weather.
In the event of the eviction being canceled due to a "Notice of Motion" vacating judgement [sic] order, the Sheriff will hold the eviction for only 2 weeks after posting. If no further action is requested, it will be sent back to the Clerk of the Circuit Court's file.
All eviction orders must have the name & address of the landlord/plaintiff, as well as the phone number and/or attorney information.
EVICTION SCHEDULED DATE: _________________________ case no: ______________________
Eviction will begin at 10:00am prompt!
Note: Evictions that have been scheduled will be re-scheduled only once.
The Sheriff's deputy will post an Eviction Notice on the tenant's door. [top]
8. Eviction Day
How can you avoid Eviction Day? Sometimes it is unavoidable. But a smart tenant will move out before eviction day. How smart is your tenant? Try giving them a little "nudge," by explaining the process to them in advance.
On Eviction Day, you will show up with two or three helpers, and wait for the Sheriff Deputy to arrive before you begin moving the tenant's belongings to the street (or alley). While you will not intentionally damage the tenant's possessions, you are not required to care for them as you would your own. Typically, you will grab the tenant's bedsheet, pile as much on it as you can, then tie the corners together and lug it out to the street. Other items will be dumped into plastic bags or carried out individually. Mirrors and dishes sometimes get broken -- it can't be helped. After all, you're working as quickly as possible, because time is money.
Speaking of money, the Deputy Sheriff will stand by to make sure there is no violence, and to ensure that you don't intentionally damage the tenant's belongings. This is hard work, so the Deputy doesn't have time to physically help you. So, while the Deputy watches and waits, the clock is running...at $$$$ per hour. Good news: the Sheriff will bill you for these charges; you are not required to pay cash in advance.
Once the tenant and his/her belongings are out of the apartment, you'll need to change the locks. Lock all the windows, too (click here to see what can happen if you forget). By now, the Deputy Sheriff will be gone, and you will need to leave the tenant's belongings at the curb for twenty-four (24) hours. You are not responsible for guarding the items, however. If you want to see something amazing, just park across the street and watch your tenant's "friends" and neighbors pick over your former tenant's goodies. Pretty soon, all the good things are gone. After you have waited 24 hours, you are responsible for cleaning up the mess and depositing it in the trash. If you don't, your city/village officials will probably ticket you.
As mentioned earlier, a smart tenant will avoid Eviction Day. Just to be sure, spend some time familiarizing them with the process. If they value their belongings, they will move before the deadline.
Be sure to check the night before eviction to see if the tenants have moved out on their own. If so, call the Sheriff in the morning to cancel, or you'll pay for the trip. [top]
B. When Things Go Wrong
If you carefully follow procedures, things rarely go wrong. But Murphy's Law is alive and well, so things eventually do go wrong. This section will help you through those times.
1. Can't Serve the Tenant
If the tenant can't be served the Landlord's Five Days' Notice or the Summons/Complaint in Forcible Entry, you will not be able to win a money judgment. But you may win an order for possession only.
The Landlord's Five Days' Notice can be sent to the tenant via certified mail, return receipt requested, or can be posted on the premises. If you exercise either of these options, you will be unable to win the money judgment in eviction court, but you will be able to get an order for possession. (735ILCS 5/9-104)
Certified mail will work only if the tenant accepts the certified mail. Tenants with half a brain will not accept the certified letter; they will also be put on notice that you are trying to serve them, causing them to be on the lookout for the Sheriff or a process server.
If the Summons/Complaint can't be served in time, go to court on the return day, and ask for an Alias Summons. The judge will give you an order for Alias Summons, which you take to the Clerk of Circuit Courts. There, you complete the usual "Summons" form, but you write "Alias" before the word "Summons." The new summons provides a time extension and a new return day is scheduled.
The Summons/Complaint in Forcible Entry can be posted by the Sheriff if all other attempts at personal service have failed. You will need an affidavit from the process server detailing the dates and times service was attempted. Bring this affidavit to court, and ask the judge for permission to have a Sheriff posting. In my experience, the judge will want proof that service was attempted over several days, and at different times of the day. Eight to ten attempts should suffice. However, if service was attempted at 3:00 P.M. for eight straight days, your request will be denied. The process server must "mix it up."
The judge expects you to prepare all the paperwork, since you are acting as your own attorney. You will need to prepare a Posting Order to be signed by the judge. Here is some sample wording from an Order in one of my posting cases:
Order for Alias Summons and Posting:
This matter coming for hearing on plaintiff's motion for order authorizing service by sheriff posting and for issuance of Alias Summons for service upon [Name of Defendant], Defendant and the court being duly advised in the premises
It is hereby ordered the Plaintiff is given permission to have Sheriff post subject premises for purpose of service, and orders issuance of Alias Summons herein.
With a posting, the Sheriff will post the notice in three public places in the neighborhood of the court where the cause is to be tried, at least 10 days prior to the day set for appearance (the new Return Day). The Sheriff will also mail one copy to the tenant's address of record, and shall file notice with the court stating the details of such mailing and posting. (735ILCS 5/9-107)
2. Tenant Disputes Your Claim
Many times the tenant appears in court and admits to owing the rent. Usually they will try to provide excuses to the judge, who will hear none of it. Some tenants think they're coming to "People's Court," and bring reams of irrelevant information. The only pertinent question is: Do you owe the money? If the tenant says "Yes," it's "case closed"!
If a tenant disputes your claim, it is usually a ploy to buy more time. Often it works, but it costs the tenant the Appearance filing fee.
When the tenant denies owing the rent, the case is set for trial in seven days. You need to be prepared for trial:
|Prepare a schedule of rents owed and corresponding payments|
|Bring copies of each rent payment, if available. It's a good idea to keep a photocopy of every rent payment in the tenant file for just this purpose.|
|Bring copies of the lease and all lease extensions and revisions.|
|Bring anything else that might be helpful|
Again, bring copies, not originals, in case the judge keeps them.
A word about receipts:. Get in the habit of always providing written receipts for all cash rents received. This is important if your case goes to trial, because you'll be able to demonstrate a pattern of behavior to the judge. If your practice is to always provide cash receipts, a tenant's claim that she paid in cash - and didn't get a receipt - will be discounted by the judge. Otherwise, it's just your word against hers!
If you have your facts straight, the judge will rule in your favor. Enforcement of the order is usually delayed seven to fourteen days. Get the Certified Order and schedule the eviction as soon as possible.
3. Tenant Files "Notice of Motion to Vacate"
When the tenant fails to appear in court, the judge orders a default judgment in your favor. After the fact, the tenant may file a "Notice of Motion" to vacate the judgment. When this happens, the tenant sets a new court date for the judge to hear the motion. If the tenant prevails at the hearing, the default judgment is vacated. The case will normally be set for trial in seven days. Meanwhile, your eviction order is useless until trial.
Several times, my tenants have arrived in court after their case has been called, and judgment rendered. One one occasion, the tenant filed a Motion to Reconsider, claiming she was unavoidably delayed. Just one more tactic used by savvy tenants to postpone the eviction date.
4. Paperwork is Defective
|If the Landlord's Five Days' Notice is prepared improperly, or insufficient time was allowed before the case was filed, the judge may require you to go back and start the process over.|
|If the Summons was not served by the Sheriff or a licensed process server, you may be required to repeat this step.|
|If you failed to list all the adult tenants on the Landlord's Five Days' Notice or on the Summons/Complaint in Forcible Entry, you may be able to evict the named parties, but not the unnamed parties. Make sure you always list all lessees, so this cannot happen. This is not usually a problem in Lake County, but it could become an issue. Cook County landlords have more problems with this.|
5. Judgment for Defendant
This happens about a dozen times a year in Lake County. The tenant is able to prove that no money is owed the landlord, so the judge rules in the tenant's favor. The landlord must pay tenant's Appearance fee (plus tenant's legal costs, if there are any) in this situation.
Your remedy? Always provide written receipts for cash payments, as discussed above. Keep better records and maintain your property. There should be no reason to get into this situation. Make sure the tenant cannot claim that the dwelling is unsafe or uninhabitable.
Remember, eviction trials never result in a tie. The judge will decide in somebody's favor; when in doubt, he just might rule in your tenant's favor. Your job is to make sure there is never any doubt.
6. Tenant Counter-sues
I have never had a tenant counter-sue in a forcible detainer action. I suppose the process is the same as the eviction bench trial. Be prepared with the facts, forms and witnesses you require to answer the complaint in the lawsuit.
I have been sued in small claims court by a former tenant (and lost), and I have sued a former tenant in small claims court (and won). The same judge hears the case, and the process is similar to eviction trials.
C. Frequently Asked Questions
Q. How does the tenant's security deposit affect the money judgment in eviction court?
A. The security deposit is not relevant. Your money judgment should be for the full amount of rent owed. After the eviction, you should mail a security deposit disposition (click for sample form) to the tenant, subtracting unpaid rents and damages from the security deposit. If a balance remains in the tenant's favor, a refund is owed them.
fact, Illinois statutes require you to account - in writing - for all
security deposits withheld for damages, if your building contains more
than four apartments [
Q. The tenant moved out before the court return date. Should I cancel the eviction?
A. If you all you want is possession of the property, you can stop now. If you also want a money judgment, continue to eviction court. Since the tenant has already moved, he will be less likely to show up in court, enabling you to obtain a default judgment.
Q. After I filed the forcible entry and detainer with the Clerk of Circuit Court, the tenant paid me in full. Must I cancel the eviction if I accept the money?
A. No. If you can prove the payment was received after your case was filed (the date on the money order, for example), you're entitled to the rent and the eviction. Remember, the tenant owes you the rent; if they pay you after the expiration of the five-day notice, they have lost their right to void the eviction.
As a precaution, I bring the uncashed money order to court with me, so I can show it to the judge. He has always ruled in my favor.
Q. My tenant has moved out but not returned the keys. I'm afraid she'll come to court and claim she moved out a month ago and owes no rent.
A. If the tenant has not returned the keys, she owes rent until the day the keys are returned. By law, the tenant does not relinquish possession until the keys are returned.
Q. The tenant moved out but did not return the keys. I'm just happy that she's gone, but do I have to wait until she returns the keys before I can take possession?
A. By the book, you probably should wait. As a practical matter, though, most landlords would count their blessings, change the locks, and move on.
Q. My tenant told me he was moving at the end of last month, but he's still here. What can I do?
A. Did the tenant give notice in writing? If not, you probably don't have legal recourse, other than demanding and collecting ongoing rent. If there is a month-to-month tenancy, you can serve the tenant with a 30-Day Notice of Termination. Not just any 30 days will do, though; your notice has to cover one complete rental period. So, if the rent is due December 1st, you would give notice by November 30th and tenancy would end on December 31st.
If the tenant did give you
written notice, or stays after you have terminated his tenancy, he is
"holding over." Illinois law
Q. Why does the judge call the attorney-represented cases first? Those of us who do not use attorneys have to wait until all the attorneys are finished.
A. It doesn't seem fair to me, either. But the judge has explained that the attorneys often need to be in two courtrooms at once; their cases are called first so those attorneys can move on to other courtrooms where their presence is required.
Q. I just went to court for my first eviction case. Nobody was helpful! Why don't our public servants actually serve the public?
A. The court system is set up for attorneys. Self-representation is allowed, but you are expected to know what you are doing. It is not the job of the judge or the court clerk to walk you through the process. In fact, sometimes the employees of the Clerk of Circuit Court do try to be helpful and can feed you misinformation. They are not trained or experienced in this process, so don't expect sage advice from them. You can count on them to instruct you in court filing procedures and little else.
Q. Are there any circumstances where I am not allowed to do my own evictions?
A. Yes! You are allowed to represent yourself -- never another person or entity. A corporation or LLC, for example is a separate entity and you are not allowed to represent that entity unless you are an attorney.
"So," you say, "If I own my property in an LLC, do I have to use a lawyer?" I discussed this with Judge Fritz, and the determining question is, "Who is the Lessor?" If your leases list you as the Lessor, you may be able to do your own evictions.
I use a D/B/A (Doing Business As) for my property management (see article on Assumed Business Names). A D/B/A is not a separate entity in the eyes of the court, so I can still perform my own evictions.
In theory, you could own your property within an LLC, but set up your management arm as a D/B/A and do your own evictions. But you better check with an attorney (and hope you get a straight answer) before trying this yourself.
To avoid confusing the judge, I always always write "Mel & Linda Metts D/B/A Metts Partners" in the Plaintiff section of every court document.
Q. Okay, I went to court and won the case for possession and late rents. I have evicted the tenant. Now, how do I collect the money owed me?
A. What a wonderful world it would be if landlords collected all their judgments! The material provided here is limited to evictions; maybe we will publish something on judgment collection at a later date.
A. To evict for lease violation (other than committing a crime on your property), you need to use the Ten Day Notice. Allow ten intervening days before you file the case. You must list the specific lease clause that was violated. When you go to trial, the judge will require you to provide evidence to prove your case. Affidavits from witnesses do not qualify as evidence, because they can't be cross-examined. So if you have witnesses, they must come to court to testify. Lease violation evictions are much more difficult to win due to the required burden of proof.
Often the lease violation is that your tenant has moved other residents into the unit, and those residents are not on the lease. In this case you might want to serve a Barring Notice to those illegal residents instead of resorting to an eviction. If you use this Notice, be sure to deliver copies to the local police department as well. Anyone barred from the property may be arrested for criminal trespass, a Class B Misdemeanor. For more information on this valuable tool, click here.
In my experience, tenants who are served a Ten Day Notice might not pay any more rent. If this happens, you can then serve the Five Day Notice for nonpayment of rent and evict accordingly. This is a much easier way to prevail in court.
If the lease violation involved a crime committed by your tenant or his guest, you may be able to evict under the nuisance laws. Look here for more information.
Q. I have evicted my tenants, and don't want them to come back on the property. Is there any way to enforce this?
A. You can use a No Trespass Notice. Once served as described in the Notice, this should have the equivalent effect of the Barring Notice. Posting such notice at the building entrance should suffice, according to Illinois Code 720 ILCS 5/21-3.
Q. My tenant is on a month-to-month rental agreement. Lately he's been slow to pay the rent, and I just want him out. Is there a procedure required to notify him?
A. In the past I just wrote a letter to the tenant, and mailed it. But there is a special form that can be used and served in person, the Thirty Day Notice.
In my experience, tenants who are served a Thirty Day Notice refuse to pay any more rent. If this happens, you can then serve the Five Day Notice for nonpayment of rent and evict accordingly. If all goes well, you'll have them out in less than thirty days, but you will incur legal costs. This is still preferable to waiting until the end of the thirty day period to see if they are going to move out peaceably. If they don't move, you still must evict, and you've lost another month.