Illinois Issues Landlord Tenant Law
By: Tammie Grossman Statewide Housing Action Coalition 11 E. Adams, Suite 1501 Chicago, IL 60603
Illinois Law Forcible Entry and Detainer, 735 ILCS 5/9-101 et seq. (Governs procedure for filing an action in Forcible Entry and Detainer or eviction action). Landlord and Tenant Act, 765 ILCS 705/5 (authorizing expedited eviction procedures when any lessee or occupant is charged during the lease term with committing a class x felony on the premises); Rental Property Utility Service Act, 765 ILCS 735 (authorizing tenants to pay for utility service the landlord has failed to provide and to deduct the cost of such service from the rent);
Illinois Law Retaliatory Eviction Act, 765 ILCS 720/1 (prohibiting retaliatory evictions); Illinois Human Rights Act, 775 ILCS 5/1-101 et seq. (prohibiting unlawful discrimination in rental housing based on a person's race, color, religion, sex, national origin, ancestry, age, marital status, and military status); Controlled Substance and Cannabis Nuisance Act, 740 ILCS 40/11 (authorizing expedited eviction procedures where controlled substances are found in the leased premises);
Illinois Law 65 ILCS 5/ (authorizing tenants to seek injunctive relief, damages, and attorneys' fees when landlords fail to comply with local building, health, and safety codes); Security Deposit Return Act, 765 ILCS 710/0.01 (Applies to residential real estate with five (5) or more units and governs the return of a tenant’s security deposit) Security Deposit Interest Act, 765 ILCS 715/0.01 (Applies to residential real estate with twenty-five (25) or more units and governs the amount of security deposit interest.)
Local Law Residential Landlord and Tenant Ordinance, Chicago Municipal Code, § et seq. (RLTO) Cook County Human Rights Ordinance, No , (prohibits discrimination based on a person’s race, color, sex, age, religion, disability, national origin, ancestry, sexual orientation, marital status, parental status, military discharge status, source of income, or housing status.) Chicago Fair Housing Ordinance, Chicago Municipal Code, § 198.7B-1 et seq. (prohibits discrimination based on a person’s race, color, sex, age, religion, disability, national origin, ancestry, sexual orientation, marital status, parental status, military discharge status or source of income.)
Types of Notice Five (5) day Notice – for past due rent only. Do not include other charges. Ten (10) day for cause – use when tenant violates the lease in some way usually used for such things as excessive noise. Thirty (30) day for month to month tenants. Special five (5) day for drugs notice - use when there has been an arrest and seizure of illegal drugs in the apartment.
How to serve notice Personally serving the tenant
Personally serving someone in occupancy of the apartment over the age of thirteen (13). By posting, if no one is in actual possession of the premises. If the persons in possession are “unknown occupants”, then address the notice “unknown occupants” and use the best method of service discussed above.
Timing Remember to wait the appropriate number of days before filing the eviction action. If the last day falls on a weekend or holiday, the tenant has additional day(s) to cure the non-payment of rent. If you file prematurely, your lawsuit could be subject to dismissal.
Service of Summons Done by the Sheriff or Special process server
Best service is personal service on the tenant. Abode service is acceptable but summons must also be mailed. Service by posting is available if the tenant is evading service. Cannot obtain money judgment. Must file an affidavit stating that the defendant does not reside in Illinois, has left Illinois, on due inquiry cannot be found, or is concealed within Illinois so that process cannot be served upon her.
Return Date Tenant is entitled to a short continuance to prepare for trial. Tenant can request a jury trial must do so on return date or risk not being allowed to make a request later. Tenant can contest court’s jurisdiction if summons not served properly. Tenant is not required to file a written answer unless ordered to do so by the court.
Prima Facie Case Landlord is entitled to possession of the premises;
The tenant has possession of the premises; The tenant has violated an applicable law or breached the lease, or is holding over after the lease expired or was terminated, or is a trespasser; and Landlord served the tenant with a valid written termination notice (assuming such notice was required).
Types of Defenses claims asserting a paramount right of possession;
claims denying the breach of the agreement vesting possession in the plaintiff; claims questioning the validity or enforceability of the document upon which the plaintiff's right to possession is based; or claims questioning a plaintiff's motivation for bringing the forcible action.
Defenses Plaintiff is not a proper party or lacks the capacity to sue. (A building cannot sue a tenant but a management company can bring suit). The Notice was improperly served. The Notice did not comply with the statutory provisions. For example, it did not allow the tenant to cure a non payment of rent breach or it failed to state how the tenant violated the terms of her lease. The landlord filed the lawsuit prematurely.
In a non-payment case, the tenant could argue that they owed no rent either because their rent was improperly calculated or because they paid all the rent that was demanded of them. The tenant can assert that she does not owe rent because the landlord has violated the Rental Property Utility Service act. The tenant could also argue that she paid the rent requested within the time specified but the landlord refused to accept the rent. The tenant could argue that they owed no rent because the apartment was not maintained in an habitable condition.
Tenant could argue that the never committed the act alleged in the 10 day notice.
Tenant could argue that even if they did commit the act, it was a de minimis breach and does not warrant eviction. Tenant could argue that the landlord waived its right to evict by accepting rent with knowledge of the alleged breach.
Tenant could argue that the landlord is evicting them for a retaliatory reason such as complaining regarding a building code violation. Illinois courts have extended this concept to include evictions based on acts of domestic violence. Tenant could argue that they are being discriminated against because they are a member of a protected class or that they are entitled to a reasonable accommodation.
Special Defenses under RLTO
In a case of non-payment of rent, tenant can pay rent even after the five (5) days have expired. In the case of a 10 day notice, the tenant may be able to show that they cured the lease violation if it was capable of being cured or that the notice failed to state the tenant could cure the alleged breach.
Rent Withholding Provisions RLTO
There is material noncompliance by the landlord with the rental agreement or the landlord breaches his responsibility to maintain the premises. The tenant notifies the landlord in writing of the tenant's intention to withhold from rent an amount which reasonably reflects the reduced value of the premises due to the material noncompliance. The tenant should be conservative in making this “reduced value” calculation. The landlord fails to correct the condition within 14 days after receiving the notice. During the time the failure continues, the tenant may deduct from the rent the amount stated in the notice.
Retaliatory Eviction - RLTO
Complaining of code violations to a governmental agency, elected representative, or public official charged with enforcement of a building or health code. Complaining of a building or similar code violation or illegal landlord practice to a community organization or the news media. Seeking the assistance of a community organization or the news media to remedy a code violation or illegal landlord practice. Requesting that the landlord make repairs to the premises required by a building code or other regulation. Becoming a member of a tenant's union. Testifying in court or administrative proceeding concerning the condition of the premises. Exercising any right or remedy provided by law.
Abandonment – RLTO Actual notice from tenant that they have abandoned the property. All persons have been absent for 21 days, the tenant’s property is removed and the rent has not been paid. All persons under the lease have been absent for 32 days and the rent has not been paid (whether or not the property has been removed)
Judgments A dismissal for want of prosecution occurs if the plaintiff or his attorney fails to appear in court on the return date. After filing a motion and paying a fee the case is usually reinstated. A default judgment occurs when the tenant fails to appear in court.
Motions to Vacate a Default Judgment
If filed within 30 days, it is usually an abuse of discretion for a judge to deny a motion to vacate the default judgment. A timely filed motion stays enforcement of the proceedings. If filed after 30 days, the tenant must show: that they acted in due diligence in pursuing the underlying case, they acted in due diligence in filing the motion in a timely as practicable manner and that they have a meritorious defense to the underlying case.
Judgments in Jury Cases
Within 30 days after the jury renders its verdict, either party may move for a judgment notwithstanding the verdict, an arrest of judgment, or a new trial. A timely filed motion stays enforcement of the judgment.
Enforcement of Judgments
Only Sheriff can enforce judgment. Landlords must enforce a judgment of possession within 90 days, unless the court extends the time period before the expiration of the 90 days. 735 ILCS 5/9 -117 Landlord can request extension which must be granted unless the tenant can establish: That the tenancy has been reinstated, or That the breach upon which the judgment has been issued has been cured or waive, or That there is a post-judgment agreement whose terms the tenant has performed, or That other legal or equitable grounds exist that bar enforcement of the judgment
Websites of interest www.illinoislawhelp.org www.illinoislegalaid.org
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