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Commercial and Residential Eviction (IL)

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Commercial and Residential Eviction (IL) Commercial and Residential Eviction (IL) Go to: Overview and Relevant Law | The Pre-suit Notice | Service of Pre-suit Notices | Preparing the Eviction Complaint | Serving the Summons and Complaint | Pretrial Procedure | Eviction Trials | Defenses | Sealing Orders | Lockout | Disposition of Personal Property | Upcoming Release of Standardized Illinois Eviction Forms Current as of: 02/01/2019 by Richard Toboz, Heavner, Beyers & Mihlar, LLC This practice note explains Illinois laws governing both residential and commercial evictions. Evictions are often viewed as simple and straightforward cases but beneath the surface there is significant complexity that can come as a surprise, and common pitfalls can ensnare the unfamiliar. This note is designed to help attorneys on both sides navigate the eviction process in Illinois in an expeditious and effective manner. The practice note discusses: • The framework of laws governing evictions in Illinois, including the procedural mechanisms available to litigants to recover possession of a property and to collect unpaid rent, assessments, or amounts due to property owners in an eviction context • Common defenses to an eviction lawsuit and some of the options available to defendants facing an eviction • The differences between laws governing residential evictions and those governing commercial evictions Overview and Relevant Law Illinois is a judicial eviction state. This means that when a party who is legally entitled to possession of a piece of real estate wants to take possession of that property away from another party, they must file an eviction lawsuit, obtain an order from the judge authorizing the eviction, and then have the county sheriff’s office enforce that order by evicting the unwanted occupants. In some states, an owner or landlord can change the locks, call the police, or even use force to remove tenants or occupants who have worn out their welcome, but in Illinois, such efforts are generally against the law and can even lead to liability for wrongful eviction. 735 ILCS 5/9-101; see e.g., People v. Evans, 516 N.E.2d 817 (1987). With few exceptions, the only legal way to wrest possession of real property in Illinois from unwanted occupants is through the judicial process. The main law governing evictions in Illinois is the Eviction Act, found at 735 ILCS 5/9-101 et seq. The Eviction Act lays out the process for the party rightfully entitled to possession of real property to be restored to possession by lawful authorities, specifically the circuit court and the sheriff of the county where the property is located. Generally, this process can be divided into three phases: (1) pre-suit notice, (2) the eviction lawsuit, and, finally, (3) the lockout. Throughout this note, a lawsuit filed under the Eviction Act to obtain possession of real property is referred to as an eviction lawsuit, the real property which is the subject of the eviction is referred to as the subject property, and the people to be evicted from the subject property are referred to as the occupants. The act of the county sheriff going out to the subject property, evicting the occupants, and putting the plaintiff in possession of the subject property is referred to as the lockout. Both commercial and residential evictions follow the same basic process in Illinois. The main difference between the two is that residential tenants are protected by an array of state and local laws that limit what the landlord can Commercial and Residential Eviction (IL) do to evict them, while commercial tenants are not. Certain lease provisions, such as those that waive the right to a trial by jury, cannot be enforced against residential tenants but they are fully enforceable against commercial ones. Generally, in a commercial eviction the court will enforce the lease provisions to the letter, unless they are unconscionable or unlawful. The Pre-suit Notice For the purposes of this note, a pre-suit notice refers to a written notice that must be served upon the occupants of the property in question before an eviction lawsuit can be filed. Although not required for every eviction, there are so many circumstances where a pre-suit notice is legally required before an eviction lawsuit can be filed in Illinois that the vast majority of eviction cases involve a pre-suit notice of some kind. The required content and the method of service of a pre-suit notice differ depending upon the circumstances. Pre-suit notices are often required when: • A landlord wants to evict a tenant. • A condominium association wants to evict a unit owner for unpaid assessments. • The new owner after a foreclosure wants to evict occupants of the property other than the mortgagors themselves. An eviction lawsuit filed without the service of a legally required pre-suit notice is generally fatally flawed and subject to dismissal. Likewise, a pre-suit notice that is served in an improper manner or a pre-suit notice containing a material defect in its content can also subject an eviction case to dismissal. Material errors in the content or service of a pre-suit notice are probably the most common reason for an eviction lawsuit to be dismissed. Because of this, it is important for the plaintiff’s attorney to check the notice and manner of service carefully before filing an eviction lawsuit. An attorney representing a defendant facing eviction will want to scrutinize the notice and means of service carefully as well to ensure that they comply with the appropriate legal requirements. There are so many potential types of pre-suit notice that an exhaustive list is impossible. For instance, when a landlord and tenant are drawing up a lease, the parties can agree to modify the content or means of service of any required pre-suit notice in just about any conceivable way (unless prohibited by local municipal ordinance, which is the case in several jurisdictions, most notably Chicago). Leases or condominium association bylaws can also specify that additional kinds of notices are required, above and beyond those required by state law, and these provisions will be enforced by Illinois courts. That said, the pre-suit notices required in most evictions cases in Illinois usually fall into a small handful of the most common types. The subsections below examine the circumstances where a pre-suit notice is usually required, the type of notice to be used in each, and the means of service necessary for the notice to be legally effective. Landlord-Tenant Notices When a landlord wants to evict a tenant for a violation of the lease terms, a pre-suit notice is usually required before an eviction lawsuit can be filed. If the lease is in writing, that is the first place to look in determining whether a notice is required and, if so, what type of notice and how it must be served. If the lease is silent on either question (or if the lease is a verbal one only and was never reduced to writing), then the next place to look is the Eviction Act itself, which contains provisions specifying what notice to give under most circumstances, as well as how that notice must be served. As noted above, the requirements laid out by the Eviction Act can be waived or modified by the lease terms themselves. See Sandra Frocks v. Ziff, 74 N.E.2d 699 (Ill. 1947), 702 (Ill. 1947). However, the Eviction Act’s requirements provide a baseline standard and in many cases the pre-suit notice and means of service required will be exactly as the Eviction Act specifies. If there is a provision in a written lease that specifies what kind of pre-suit notice must be given in a particular circumstance, or how that notice must be served, then in most cases Illinois law requires the court to enforce that provision, even if it is more or less than what the Eviction Act would require in that circumstance. Illinois courts have even repeatedly upheld lease provisions that waive the requirement of a pre-suit notice altogether, meaning that the landlord can file an eviction lawsuit immediately after any material breach of the lease terms has occurred. See id.; Page 2 of 19 Commercial and Residential Eviction (IL) Avdich v. Kleinert, 370 N.E.2d 504, 507 (1977); Tr. Co. of Chicago v. Shea, 122 N.E.2d 292, 293 (Ill. 1954); Espen v. Hinchcliffe, 23 N.E. 592, 593 (Ill. 1890). The main exception to this general rule is that if there is a local landlord-tenant ordinance that sets requirements for what kind of pre-suit notices must be sent to tenants or how those notices must be served in that municipality, the ordinance will control even over a contrary lease provision. The most prominent example of such an ordinance is Chicago’s Residential Landlord and Tenant Ordinance (the RLTO). Chicago, Illinois Code of Ordinances Sec. 5-12- 010 et seq. The RLTO sets numerous, stringent requirements for landlords, including requirements that specify what kind of notice must be sent and how it must be served for all common lease violations. Counsel for a landlord contemplating an eviction should be careful to check and see if there is an applicable municipal ordinance before drafting and serving a pre-suit notice on the tenant, lest the eviction case face dismissal for inadequate notice later. Likewise, counsel for a tenant facing eviction would be wise to check and see if a local municipal ordinance might offer a defense on that same basis. Local landlord-tenant ordinances such as the RLTO are usually inapplicable to commercial tenants. Despite all of the above, the majority of commonly used form leases in Illinois do not deviate significantly from the Eviction Act’s requirements for the type of notice to be sent in a given circumstance, or the means of service required for said notice to be effective.
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