Post Authored by Marvis Barnes
The landlord-tenant relationship is bound to be difficult. Commercial and residential landlords always have and will continue to have a variety of issues with tenants. As an attorney advising a landlord on the steps to take when there is a breakdown of the landlord-tenant relationship, the possibility of evicting a tenant is a topic likely to come up. The Eviction Act (formerly known as the Forcible Entry and Detainer Act), 735 ILCS 5/15-1101 et seq., outlines the necessary steps and proceedings to determine the right and restoration of possession to land and property. One cannot simply request a tenant to vacate, despite what many landlords and practitioners believe.
The main reason a landlord wishes to evict a tenant is for failure to pay. However, there are other circumstances that cause a breakdown in the landlord-tenant relationship. When seeking to default tenants, many landlords and attorneys find creative bases for eviction. If it is based on a breach of certain lease obligations, this creativity can pay off. Unfortunately, some landlords issue default notices that lash out at tenants, rely on an improper basis and are improperly noticed/served.
Word of advice—be careful what you include in the default notice. Landlords are advised to measure the basis for the eviction, due to new laws. For example, landlords are prohibited from discriminating against a tenant on the basis of gender, race, or other characteristics found in protected classes.
Most recently, Illinois took additional steps to protect tenants when it became the second state to enact new protections for immigrants who rent properties. Governor Pritzker signed the Immigrant Tenant Protection Act (“ITPA”) into law—SB3103; 735 ILCS 5/9-106.3. The ITPA is designed to prevent landlords from evicting or retaliating against undocumented tenants because of their immigration status. It allows immigrants to sue their landlords for using their immigration status as a weapon of retaliation. Each violation could result in a civil penalty of up to $2,000. Accordingly, landlords and tenants should be aware of the ITPA and the basis of an eviction action.
Remember, follow the basics and keep it simple.
The initial step required by most leases and the Eviction Act is the issuance of a valid default or termination of tenancy notice. The Eviction Act mandates that any landlord evicting a tenant serve a notice of termination of tenancy in one of the following ways:
- By personal service on the tenant;
- Service on a person 13 years old or older if residing on the premises or in possession of the premises;
- Certified or registered mail, with return receipt or posting, but only where no one is in actual possession.
If a landlord is determined to evict a tenant for failure to pay rent, the statute also requires the following language to be included in the default notice: “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.” See 735 ILCS 5/9-209.
With this in mind, attorneys should adhere to the above requirements and only include relevant details. Landlords and practitioners must follow the statutory requirements of the Eviction Act, the terms of the lease agreement, and other applicable laws—such as the ITPA. Failure to do so can result in spending unnecessary funds, restarting the eviction process and re-issuing any and all notices or eviction complaints to ensure compliance.
With the Eviction Act and the ITPA, Illinois clearly values tenants’ rights. These acts also outline the landlords’ obligations before they can evict a tenant. Proceed accordingly.
About the Author:
Marvis A. Barnes, II is an Associate in the Chicago office of Gordon & Rees and is a member of the Commercial Litigation practice group. He concentrates his practice in commercial litigation and business disputes. Mr. Barnes’ experience also includes work in the areas of real estate litigation, transactional services, and employment litigation and counseling. Mr. Barnes has extensive experience representing businesses ranging from sole proprietorships and closely-held corporations to international organizations and Fortune 500 companies. Mr. Barnes has represented clients in state and federal courts, and has represented clients through all stages of the litigation process, including bench and jury trials. He graduated from the University of Illinois College of Law.