Commercial and Residential Eviction (IL)

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. A brief survey of the most common landlord-tenant notices follows below, along with an analysis for the elements required to draft a legally sufficient version of each. In the vast majority of circumstances, the appropriate notice will be one of those listed below.

5-Day Notice (Termination of Tenancy for Unpaid Rent)

When the tenant has failed to pay the rent on or before the date it comes due, a 5-Day Notice is usually required. The Eviction Act lays out some requirements for a legally effective 5-Day Notice at 735 ILCS 5/9-209. The purpose of a 5-Day Notice is to alert the tenant(s) that the rent is past due and to give them one final chance to pay the rent and to avoid termination of the lease and eviction. In this respect, a 5-Day Notice is different from other types of notices in that it provides tenants with an inherent right to cure the violation by paying all of the unpaid back rent within five days of the date the notice is served on them. Absent a contrary lease provision, if the tenant pays all of the rent owed within the five-day period, then the lease violation is cured, the lease remains in full effect, and the landlord cannot file a legally valid eviction lawsuit against the tenant over the previously-unpaid rent.

To be legally effective, the Eviction Act requires that a 5-Day Notice be in writing, that it give the tenant at least five days to pay the unpaid back rent, and that it informs the tenant that unless payment is made within the time period specified (not less than five days from the date the notice is served on them), the lease will be terminated. Finally, the Eviction Act specifies that the following language be prominently included:

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.

735 ILCS 5/9-209.

Besides the requirements explicitly stated in the Eviction Act, at the trial level judges often find a 5-Day Notice to be legally insufficient (and the eviction lawsuit subject to dismissal) if it is unclear who it is directed to or how much rent must be paid to avoid termination of the lease. As such, the best practice when drafting a 5-Day Notice is to clearly state the names of all tenants on the face of the notice as well as the address of the property it is directed to (including the unit number if applicable), and the full amount of back rent due and owing at the time the notice is drafted. A 5-Day Notice that demands more rent than the amount actually due and owing, can also be grounds for dismissal of the eviction lawsuit, so the landlord’s attorney should be careful to make sure the amount was computed correctly when drafting the notice. Finally, a 5-Day Notice should include only unpaid back rent and not other amounts that may be due such as late fees or repair costs; although these other amounts may be legitimately owed (and can be included in an eventual money judgment) they are not unpaid back rent and cannot be added into the amount on the 5-Day Notice.

Page 3 of 19 Commercial and Residential Eviction (IL)

Unless the lease says otherwise, the Eviction Act’s requirements for a 5-Day notice are applicable to commercial evictions as well. However, many commercial leases contain provisions that require a shorter or longer time period for the notice (such as 10 days or three days), or that waive the requirement of a pre-suit notice entirely. Counsel for the plaintiff should check the lease carefully when preparing a notice for a commercial eviction to ensure that the pre-suit notice follows all applicable lease provisions.

For a form, see 5-Day Notice for Unpaid Rent (Eviction) (IL).

10-Day Notice (Termination of Tenancy for Lease Violation Other than Unpaid Rent)

When the tenant has committed any other material violation of the lease terms besides unpaid rent, a 10-Day Notice is typically required to terminate the lease. The Eviction Act lays out some requirements for a legally effective 10-Day Notice at 735 ILCS 5/9-210. The purpose of a 10-Day Notice is to notify the tenant that they have breached the lease terms, to specifically explain what the tenant did that breached the lease, and to inform the tenant that as a result the lease will terminate 10 days after the date the notice is served. The Eviction Act states that the notice must be signed by the landlord or their agent and that it must be substantially in the following form:

To A.B.: You are hereby notified that in consequence of your default in (here insert the character of the default) of the premises now occupied by you, being, etc., (here describe the premises) I have elected to terminate your lease, and you are hereby notified to quit and deliver up possession of the same to me within 10 days of this date (dated, etc.).

735 ILCS 5/9-210.

As with a 5-Day Notice, a 10-Day Notice that is not clear about who it is addressed to or about the violation that gave rise to the lease being terminated may be grounds for dismissal of the eviction lawsuit. Because of this, best practice when drafting a 10-Day Notice is to clearly state the names of all tenants on the face of the notice as well as the address of the property it is directed to (including the unit number if applicable), and to explain in simple and straightforward terms what the tenant(s) did that violated the lease. Beyond this information, a 10-Day Notice should not contain other extraneous information. (Landlords sometimes see a 10-Day Notice as an opportunity to air all of their other squabbles with the tenant, but this is unwise as it can confuse the issues and could lead to the notice being ruled insufficiently clear—a 10-Day Notice should be short and to the point, listing material lease violations only).

Unlike a 5-Day Notice, a 10-Day Notice ordinarily does not give the tenant the opportunity to cure the lease violation(s) they have committed. Because of this, even if the tenant attempts to remedy the violations after the notice is served, the lease will usually still terminate after the 10-day period elapses unless the landlord agrees not to terminate it. However, if the lease terms or a local landlord-tenant ordinance require that the landlord give the tenant the right to cure the violations and thus avoid eviction, this will give rise to a legally-enforceable right to cure. This right to cure, if it exists, must be clearly stated in the 10-Day Notice. Once again, Chicago’s RLTO is the most prominent example of such an ordinance—it explicitly requires landlords give tenant an opportunity to cure the violation within the 10-day period, if it can be cured. Chicago, Illinois Code of Ordinances Sec. 5-12-130(b).

In the absence of an applicable lease term or landlord-tenant ordinance, however, the tenant has no right to cure and the service of a legally-proper 10-Day Notice will inevitably terminate the lease after the 10-day period elapses, allowing the landlord to proceed with the filing of an eviction lawsuit.

Unless the lease says otherwise, the Eviction Act’s requirements for a 10-day notice are applicable to commercial evictions as well. However, many commercial leases contain provisions that require a shorter or longer time period for the notice (such as 10 days or three days), that waive the requirement of a pre-suit notice entirely, or require the landlord to give the tenant an opportunity to cure the violation before terminating the lease. Counsel for the plaintiff should check the lease carefully when preparing a notice for a commercial eviction to ensure that the pre-suit notice follows all applicable lease provisions.

For a form, see 10-Day Notice of Lease Termination (Eviction) (IL).

Page 4 of 19 Commercial and Residential Eviction (IL)

30-Day Notice (Termination of Month-to-Month Tenancy or Tenancy at the end of the Lease Term)

Even if the tenant has paid all rent on time and complied with all other lease terms, if the lease is a month-to-month lease or if it is a lease that automatically renews but is nearing the end of its current term, then a landlord can ordinarily terminate that lease by serving a 30-Day Notice. See 735 ILCS 5/9-207. Unlike other notices, the Eviction Act does not set any specific requirements for a 30-Day Notice to be legally sufficient, except that it must be in writing and give the tenant 30 days’ notice to vacate the premises. The purpose of a 30-Day Notice is to inform the tenant that the landlord has decided to bring their lease to an end, that the lease will terminate in the next 30 days, and that the tenant must move out at the end of that time or face an eviction lawsuit.

Although it may seem on the surface to be the simplest notice, a 30-Day Notice may be the trickiest to correctly employ, and there are several common pitfalls that can cause a 30-Day Notice to be found legally insufficient.

The first step in preparing a legally proper 30-Day Notice is to confirm that it is the legally correct notice to use. The Eviction Act states that a 30-Day Notice may only be used to terminate a lease with a term of less than one year. A lease with a year-to-year term requires a 60-day notice pursuant to 735 ILCS 5/9-205. Many commonly used form leases start off with a one-year term and have a provision that states that if the tenant holds over and the landlord continues to accept rent from them after the first year, the lease converts to a month-to-month term after that time. For such leases, a 30-Day Notice will be effective to terminate the month-to-month tenancy of a holdover tenant. However, counsel should examine the lease carefully to confirm that it actually has a provision that converts it to a month-to-month tenancy at the end of the term, because if it doesn’t, then a holdover tenant may have a year-to- year tenancy that cannot be terminated by a 30-Day Notice. Additionally, in the (rare) case of a tenancy with a term from week-to-week, the required notice is a 7-Day Notice instead of a 30-Day Notice. See 735 ILCS 5/9-207(a).

Also, a 30-Day Notice can only terminate a tenancy at the end of the lease term. This is because unlike 5- or 10- Day Notices, a 30-Day Notice terminates the lease not for cause but simply because the landlord does not want to continue it, and, as such, it cannot cut a lease short in the middle of its current term. If the lease has a fixed term, then the end of the lease term is usually obvious. However, month-to-month leases can be tricky because a month- to-month lease creates a new term each month and that term renews on the date rent comes due.

Finally, because a 30-Day Notice does not terminate a lease until the end of the next lease term after the 30-day period elapses, the tenant’s responsibilities under the lease do not end until that time. This means that they must still pay rent and uphold the other lease obligations during the 30-day period and any remaining lease term. If they fail to do so, the landlord may be able to terminate the lease before the 30-day period runs out, typically by service of an appropriate notice (usually a 5-Day Notice for unpaid rent or a 10-Day Notice for other lease violations).

For a form, see 30-Day Notice of Nonrenewal (Eviction) (IL).

Termination of Tenancy at the End of the Lease Term

Generally, under Illinois law, if a written lease has a specific term with a start date and an end date, and no provision that continues or renews the term after that time, then that lease terminates automatically at the end of the term and no pre-suit notice is required of the landlord. But as with much of Illinois eviction law, there are many exceptions to this general rule.

Landlord’s Acceptance of Rent

The first exception can occur if the tenant stays and pays rent to the landlord at the end of the lease term and the landlord accepts it. In the absence of a lease provision that says what should happen in that circumstance, then the lease will either renew for a whole new term identical in length to the first one (known as a holdover tenancy) or a new month-to-month tenancy will be created. A holdover tenancy will be created either if the landlord explicitly tells the tenant that the lease will be renewed for a new term, or if the landlord behaves in a manner that indicates that they assent to the renewal of the old lease for a new term. See Wendy & William Spatz Charitable Found. v. 2263 N. Lincoln Corp., 998 N.E.2d 909, 922 (2013). In the absence of some conduct from the landlord indicating an intention or an understanding that the lease has been renewed for a new term as a holdover tenancy, then the

Page 5 of 19 Commercial and Residential Eviction (IL) default is that a new month-to-month tenancy is created. See Hoefler v. Erickson, 73 N.E.2d 448 (Ill. 1947); Roth v. Dillavou, 835 N.E.2d 425, 429 (2005).

In the event of a month-to-month tenancy, then the lease can be terminated by giving a 30-Day Notice, as described above. But if a holdover tenancy has been created, the lease cannot be terminated until the end of the new term, no matter what notice is sent (unless the lease contains a provision that specifies otherwise or unless the tenant breaches the lease terms in some way).

In the case of commercial leases, which often have terms as long as five or 10 years, this can be a difficult situation for landlords who have decided later on that they want to end the lease. When drafting the lease, the landlord’s attorney should be careful to specify what will happen if the landlord accepts rent after the lease term ends, and also ensure that their client does not take any action that could be construed as creating a holdover tenancy, unless that is really their intention.

Conversion to Month-to-Month Tenancy Pursuant to Lease

The second exception, previously mentioned above, is if the lease specifies that it converts to a month-to-month lease at the end of its term if the tenant stays and pays rent after the lease term ends. In this case, a 30-Day Notice is required to terminate the resulting month-to-month tenancy, and counsel should refer to the 30-Day Notice section above for guidance in drafting a legally-effective 30-Day Notice. Such lease provisions are exceedingly common, especially in residential leases, so the landlord’s attorney should carefully review the lease to make sure a month-to-month tenancy has not been created before filing an eviction lawsuit without sending a pre-suit notice.

Failure to Provide Notice as Required by Local Ordinance

The final exception is if an applicable landlord-tenant ordinance requires a notice even if the lease does not. Landlords’ attorneys should make sure there is not an applicable local landlord-tenant ordinance in the municipality that the leased property is located before advising their clients that no notice is required. Tenants’ attorneys should likewise ensure that any applicable landlord-tenant ordinance was complied with, because noncompliance is grounds for dismissal of the eviction lawsuit.

As usual, Chicago’s RLTO is the most common example of this exception. The RLTO requires that a residential landlord give the tenant a written notice at least 30 days prior to the end of the lease term that the landlord does not intend to renew the lease. Chicago, Illinois Code of Ordinances Sec. 5-12-130(j). If the landlord fails to give this notice at least 30 days prior to the end of the lease term, then the RLTO states that the tenant can remain in the unit for up to 60 days after the date that the belated notice is given (however, the tenant must still pay rent during the 60-day period and must abide by all other lease terms—the 60 days is effectively a statutorily-mandated short- term extension of the lease). The RLTO-mandated 30-day notice of nonrenewal should be drafted to otherwise follow the guidelines stated in the 30-Day Notice section above.

Condominium Notices

Condominium law in Illinois is complex and largely outside the scope of this practice note except as it intersects with eviction law. Condominium associations in Illinois can, in certain circumstances, evict a unit owner for violation of the condominium instruments and bylaws, including failure to pay assessments, late charges, or other fines or penalties. 765 ILCS 605/9.2. The association can then take possession of the unit and withhold possession from the owner until (1) the owner fixes the violation or pay what is owed, or (2) the association rents the unit to tenants and applies the rental income to any past-due amounts not paid by the unit owner.

An association seeking to evict an owner is required to send a written notice to the owner giving the owner at least 30 days to pay the unpaid sum. 735 ILCS 5/9-104.1. This notice is similar to a 5-Day Notice for unpaid rent, discussed above, except that the unit owner remains the owner even after the 30-day period has run out (unlike a tenant, who loses all rights under the lease if they fail to pay the unpaid rent after a 5-day notice is given). The association temporarily acquires the right to take possession of the unit and evict the owner after the 30-day period, but this temporary right to possession can be extinguished at any time by the unit owner paying the full amount due

Page 6 of 19 Commercial and Residential Eviction (IL) and owing. Because of this, the association is obligated to accept payment of the unpaid amount from the unit owner at any time, even after the 30-day period has elapsed. If the unit owner pays the full amount due and owing at any time, the association must accept it and must terminate any pending eviction proceedings.

735 ILCS 5/9-104.1 requires that a condominium association notice: • Be in writing. • State the amount(s) due and owing. • State the time period(s) when each amount originally came due. • Give the owner 30 days from the date the demand is served upon them to pay. • Be signed by the agent or attorney of the association.

Similar to a 5-Day Notice, best practice when drafting a condominium association notice is to clearly state the names of all owners on the face of the notice as well as the address of the property it is directed to (including the unit number). Finally, the Eviction Act (at 735 ILCS 5/9-104.1) specifies that the following language be prominently included on the notice:

Only FULL PAYMENT of all amounts demanded in this notice will invalidate the demand, unless the person claiming possession, or his or her agent or attorney, agrees in writing to withdraw the demand in exchange for receiving partial payment.

If the unit owner does not pay the full amount due and owing before the 30-day period elapses, the association may file an eviction lawsuit. Condominium associations are usually allowed to add their attorney’s fees associated with every action arising out of a default on the part of the unit owner into the total amount due and owing, so an attorney representing a unit owner facing eviction for violating the condominium instruments and bylaws should be extremely careful before advising the owner to do anything other than fix the violation or pay the unpaid amount as quickly as possible. Unless the association or its attorneys are clearly in the wrong legally, contesting a condominium eviction lawsuit is usually a fool’s errand that will not ultimately prevent eviction but will result in greatly increased fees for that must be paid to the association’s attorneys.

For a form, see 30-Day Notice for Unpaid Assessments (Eviction) (IL).

Foreclosure Notices

Similar to condominium law, Illinois foreclosure law is a complex area in its own right and is outside the scope of this practice note except where it intersects with eviction law. In Illinois, the purchaser of a foreclosed property at the foreclosure auction is entitled to take possession of the property from the foreclosed former owners as soon as the auction results have been approved by the foreclosure judge. The resulting order, entered by the foreclosure judge, is usually referred to as the Order Approving Sale (or sometimes Confirmation Order or Confirmation of Sale Order). The Order Approving Sale can only be used to evict parties to the foreclosure lawsuit who are specifically named in the order. 735 ILCS 5/15-1508(g).

Usually the only parties to the foreclosure lawsuit are the foreclosed former owners, meaning the Order Approving Sale can only be used to evict them and no one else. The foreclosure judge usually gives the defendants a short period of time to move out and will stay enforcement of the Order Approving Sale for that time (usually 30 to 60 days). Once any applicable stay period has elapsed, the Order Approving Sale can be sent to the county sheriff for enforcement and the county sheriff will evict the people named in the Order Approving Sale on that basis.

However, if there are any other adults living in the subject property who were not named in the Order Approving Sale, then it cannot be used to evict them. Instead, a separate eviction lawsuit must be filed against these additional occupants, and a separate eviction order must be entered against them before they can be evicted by the county sheriff.

Page 7 of 19 Commercial and Residential Eviction (IL)

The only exceptions to this rule are if these additional adult occupants have been specifically named on the Order Approving Sale or on an eviction order entered by the foreclosure judge as parties the sheriff is authorized to evict. This can only occur under two circumstances: (1) if the occupants intervened in the foreclosure case while it was pending or (2) as a result of a procedure called a Supplemental Eviction Petition, which is a pleading filed in the foreclosure lawsuit (pursuant to 735 ILCS 5/15-1701) after the sale has been confirmed. This supplemental eviction petition is filed by the purchaser at the foreclosure sale and asks the foreclosure judge to authorize the eviction of the occupants specifically named in the petition. However, both of these exceptions are exceedingly rare. Most nonowner occupants do not try to intervene in a foreclosure lawsuit, and supplemental eviction petitions are seldom filed because they must be filed within 90 days after the sale is confirmed and because they can only be used to evict individuals specifically named in the petition (as opposed to a separate eviction lawsuit, which can be used to evict all occupants of the subject property whether they are specifically named or not). Because of this, in the vast majority of circumstances, the new owner will file a separate eviction lawsuit if the subject property is occupied by adults other than the foreclosed former owners.

Required Notice for Certain Residential Tenants (Bona Fide Tenants)

Under Illinois law, residential tenants leasing foreclosed property from the former owners may be entitled to remain in the property until the end of their lease term and are entitled to a written 90-Day Notice from the new owner before an eviction lawsuit can be filed against them, but only if their lease meets certain legal criteria found in the Eviction Act. 735 ILCS 5/9-207.5. Leases that meet these criteria are referred to as bona fide leases, both in the Eviction Act and colloquially. Even month-to-month leases are entitled to a 90-Day Notice if they meet these criteria. Additionally, a lease need not be in writing to meet the criteria, although verbal leases may be more difficult to prove.

Definition of Bona Fide Lease

To qualify as a bona fide lease under Illinois law, a residential lease must (1) require receipt of rent that is not substantially less than fair market rent for the property, or that is reduced or subsidized pursuant to a federal, state, or local subsidy; (2) be the result of an arms-length transaction; and (3) have been entered into or renewed before the Order Approving Sale was entered. 735 ILCS 5/15-1224. Technically the black letter criteria for a bona fide lease also states that the tenant cannot be related to the landlord as a parent, child, or spouse. However, 735 ILCS 5/15-1224 states that if the tenant proves that the lease meets all the other criteria by a preponderance of the evidence, the lease will still qualify as bona fide even if they are the parent, child, or spouse of the landlord. In practice, this exception to the parent, child, or spouse requirement effectively nullifies it—the author has never seen or heard of a case where the parent, child, or spouse requirement was found to disqualify a lease that met the other criteria.

In addition to Illinois law, tenants with a bona fide lease are also protected by a Federal law called the Protecting Tenants at Foreclosure Act (the PTFA). HELPING FAMILIES SAVE THEIR HOMES ACT OF 2009, 111 P.L. 22, 123 Stat. 1632. The PTFA originally sunsetted on December 31, 2012, but it was later revived and made permanent by a subsequent Federal statute. Economic Growth, Regulatory Relief, and Consumer Protection Act, PL. 115-174, 2018 Enacted S. 2155. The PTFA and the Illinois law both define bona fide tenant in almost the same way, and they provide almost identical protections for bona fide tenants. There are a few minor differences between the two. The Illinois law contains a provision that artificially shortens the term of certain leases, but it also allows tenants who are related to the landlord as parent, child, or spouse to qualify as bona fide tenants if they meet the other criteria (which the PTFA does not).

In the event of a conflict between the two laws, the PTFA will control unless Illinois law offers more protection for bona fide tenants. Because of this, the lease-shortening provisions of Illinois law apply to tenants who are not bona fide under the PTFA definition but are under the Illinois definition. As noted above, the only practical difference between the two definitions is that Illinois law allows tenants who are related to the landlord as parent, child, or spouse to qualify as bona fide tenants as long as they meet all the other criteria, while the PTFA does not. Thus, tenants who are related to the landlord as parent, child, or spouse may have their bona fide lease terms artificially shortened by Illinois law. 735 ILCS 5/15-1224. For tenants who are not related to the landlord as parent, child, or

Page 8 of 19 Commercial and Residential Eviction (IL) spouse, the protections provided by the two statutes are functionally identical and the remainder of this practice note will treat the two as if they were the same.

90-Day Notice

If the occupants of a foreclosed property have a bona fide lease, the new owner effectively steps into the shoes of the landlord, inheriting both the rights and responsibilities of the bona fide lease. The bona fide tenants are entitled to stay until the end of the lease term and are entitled to be served with a 90-Day Notice. If the lease term has already ended, the tenants are still entitled to receipt of a 90-Day Notice and the new owner cannot legally file an eviction lawsuit until 90 days after this notice was served on the tenants. Finally, if the new owner intends to occupy the foreclosed property as their primary residence, then they do not have to wait until the lease term ends—they can send a 90-Day Notice immediately and can file an eviction lawsuit as soon as the 90-day period has elapsed. 735 ILCS 5/9-207.5(b).

The tenant must uphold the lease provisions during this time, including the payment of rent to the new owner. If the tenant paid rent for a given month to the foreclosed former owner before becoming aware of the change in ownership, they are not required to pay rent for that month to the new owner. 735 ILCS 5/15-1508.5(d)(ii). If the tenant breaches the terms of a bona fide lease, it can be terminated (even before the 90-day period has expired), usually by serving an appropriate landlord-tenant notice (most commonly a 5-Day Notice for unpaid rent or a 10- Day Notice for other lease violations).

Illinois law does not set forth any requirements for the content of a 90-Day Notice except that it must be in writing and that it must give the tenants at least 90 days’ notice. Best practice in drafting a 90-Day Notice is to have it state the names of all known occupants (except the foreclosed former owners) on the face of the notice. The notice should also specify that it is addressed to “Any and All Unknown Occupants” in addition to any known occupants, and if the names of the occupants are entirely unknown then the notice may be addressed to unknown occupants only. The notice should also: • State the property address on its face (including the unit number, if applicable). • Clearly state that the property has been foreclosed. • Identify the new owner and should reference the foreclosure lawsuit by which they acquired ownership by case number and caption, if possible. • Tell the tenants that their lease will not be renewed or extended and that they must move out within 90 days from the date the notice is served on them (or at the end of their lease’s current term, whichever is longer) or the new owner will file an eviction lawsuit. • Tell the tenants that they must pay rent to the new owner and uphold all other requirements of their lease or else the lease may be terminated early. • Provide contact information for the new owner and information for where and how to make the rent payments. • Be signed by the new owner or the owner’s agent.

Under both the PTFA and Illinois law, only residential tenants can qualify as bona fide tenants. Commercial tenants are not entitled to the protections of these laws, including the receipt of a 90-day notice. In addition, occupants of a foreclosed residential property without a bona fide lease are not entitled to any pre-suit notice, and with respect to these occupants the new owner can file an eviction lawsuit immediately without sending a notice of any kind.

For a form, see 90-Day Notice of Intent to File Eviction Action and Demand for Possession (IL).

Service of Pre-suit Notices

Page 9 of 19 Commercial and Residential Eviction (IL)

As in other contexts, the Eviction Act provides a baseline standard for how pre-suit notices must be served on the occupants, but this standard can be modified by lease provisions or by local landlord-tenant ordinance. The Eviction Act states that a pre-suit notice can be served in any of the following ways: • By delivering a written or printed copy to the tenant or occupant personally • By leaving a copy of the written or printed notice with someone 13 years old or older who resides on or who is in possession of the premises • By sending a copy of the notice to the occupant or tenant by certified or registered mail (but this only counts as proper service if the addressee accepts the mailing and signs the returned receipt) –or– • If no one is in actual possession of the premises, by posting the notice on the premises in a prominent place (typically the front door)

735 ILCS 5/9-211.

The Eviction Act does not specify any requirements for who can serve a pre-suit notice. It is often served by the landlord or owner themselves, or by a process server. The person who serves the pre-suit notice may be called upon to testify at trial as a witness, so service by an attorney who may be handling the lawsuit is inadvisable. Whoever serves the pre-suit notice should prepare an affidavit, similar to the affidavit prepared when a summons is served, documenting where, when, and how the pre-suit notice was served.

As mentioned above, the provisions of a lease can modify or waive the service requirements set out by the Eviction Act in virtually any way imaginable as long as both parties agreed to it. Many popular form leases contain provisions that state that any required pre-suit notice is deemed properly served when sent by regular mail (instead of certified or registered mail), or that notice is deemed properly served when sent by certified mail even if the addressee does not sign for the mailing. These lease provisions will be enforced unless they run contrary to an applicable local landlord-tenant ordinance in the jurisdiction. Once again, Chicago’s RLTO is the most prominent example of such an ordinance. The RLTO requires that any pre-suit notice adhere to the service requirements set out in the Eviction Act and voids lease provisions that say otherwise. Chicago, Illinois Code of Ordinances Sec. 5-12-140 (d).

Landlords’ attorneys can save their clients time and headaches later on by making sure to include lease provisions that either waive the requirement of a pre-suit notice entirely or specify that the notice is properly served as soon as it is mailed (so that the tenants cannot avoid service by refusing to sign for the mailing). However, they must also make sure that the leased property is not located in a jurisdiction with a landlord-tenant ordinance that could nullify these provisions. On the other side, attorneys representing tenants in jurisdictions without an applicable landlord- tenant ordinance would be wise to try to negotiate for more stringent service requirements, when possible.

In the case of a condominium association seeking to serve a 30-day notice on a unit owner, Illinois law specifies that the notice may be served by either (1) personal service on the unit owner, or (2) sending it by registered or certified mail, returned receipt requested, to the unit owner’s last known address, or (3) if no one is in actual possession of the unit, then by posting the notice on the premises. 735 ILCS 5/9-104.1. A notice sent by registered or certified mail to the unit owner’s last known address need not be actually signed for or received to be effective. Id. Because of this, service by certified or registered mail is usually the best and most cost-effective option.

As mentioned above, the RLTO and most other local landlord-tenant ordinances do not apply to commercial evictions. Because of this, any required pre-suit notice for a commercial tenant must be served according to the standards set in the Eviction Act unless modified by an applicable lease provision.

Preparing the Eviction Complaint

Once the pre-suit notice has been properly served and any applicable notice period has expired, the next step in the eviction process is the lawsuit itself. The lawsuit should be brought in the circuit court for the county where the subject property is located. Like other civil lawsuits, it begins with the filing of a summons and an eviction complaint.

Page 10 of 19 Commercial and Residential Eviction (IL)

The complaint should clearly and succinctly lay out the reasons why the plaintiff has a right to evict the occupants of the property. The question of whether or not the pre-suit notice must be attached to the complaint is a gray area in Illinois law, but the best practice is to attach it along with the lease or other written contract, if applicable.

Joint Action Complaints

An eviction complaint can seek possession of the property only, or it can include an additional claim for money damages associated with the reason the defendant is being evicted, usually unpaid rent or condominium assessments (sometimes referred to in case law or court forms as a joint-action complaint). If there is a statutory or contractual basis for the plaintiff recovering their court costs or attorney’s fees, those can also be included in the eviction complaint.

However, Illinois law restricts the kinds of money damage claims that can be included in a joint-action eviction complaint, stating that only matters that are germane to the nature of an eviction proceeding may be joined to an eviction lawsuit by joinder, counterclaim, or other procedural mechanism. 735 ILCS 5/9-106. Eviction cases in Illinois are supposed to be expedited proceedings (although in the author’s experience sometimes they can take just as long as any other lawsuit), and as such they are not supposed to be burdened by unrelated money claims that must be tried at the same time. This statutory bar on the inclusion of certain money damages claims in an eviction lawsuit is sometimes referred to as the germaneness requirement. A money damages claim that is not germane to the nature of an eviction lawsuit must be brought separately via its own lawsuit.

While there is a substantial body of appellate case law parsing what is and is not a germane claim, many judges at the trial level in Illinois have very little knowledge of these cases and may not even know that the germaneness requirement exists. As such, it is most typically raised by one party or the other by motion or affirmative defense, and if the opposition does not raise germaneness as a defense to a claim then it is entirely possible that the trial court allows the claim to proceed. Generally speaking, claims for unpaid rent, use and occupancy money, or condominium assessments (or for late fees or penalties arising out of a lease or condominium bylaws) are always germane. Other kinds of claims are only germane if they would defeat one party’s right to possession of the subject property if proved. For example, a personal injury claim for damages against a landlord suing to evict a tenant would not be germane, because even if proved it would only mean the tenant was entitled to monetary damages and would not provide any defense to the landlord’s ultimate claim that the tenant should be evicted.

Named Parties

If a pre-suit notice was sent, the eviction complaint should name all parties listed on the pre-suit notice as separate defendants to the lawsuit. Otherwise, the eviction complaint should name all known adult occupants as separate defendants. An eviction complaint in Illinois is also allowed to include one more defendant, the legal-fictional defendant “any and all unknown occupants” (hereinafter referred to as just “unknown occupants”). Unknown occupants must be separately named and served, just like any other defendant. It is legal to file an eviction complaint without including unknown occupants as an additional defendant, but this is inadvisable because if unknown occupants have not been included, the resulting eviction order can only be used to evict adults who are specifically named on the order itself. If the sheriff finds any other adult occupants in the property on the day of the eviction, and unknown occupants have not been included as a defendant, then they will cancel the eviction and the plaintiff will have to go back and implead, serve, and proceed separately against the unnamed occupants before the sheriff will evict them.

Unknown occupants can (and should) be included in every eviction lawsuit, be it residential or commercial. Even if the tenant’s corporate entity is named as a defendant, the county sheriff’s deputies may not be able to determine who is an agent or employee of the corporation and who is not (or they may not believe that naming the corporation entitles them to evict any particular human occupant—the Eviction Act does not specify what should happen in the event that a corporate entity is named as a defendant). The only way to ensure that the sheriff will evict anyone and everyone at the subject property is to include unknown occupants as a defendant.

Factual Content

Page 11 of 19 Commercial and Residential Eviction (IL)

The factual content that must be included in an eviction complaint is minimal. The Eviction Act only requires that the complaint state that the plaintiff is entitled to possession of the subject property and the defendants unlawfully withhold possession from the plaintiff. 735 ILCS 5/9-106. As a best practice, the complaint should also include factual allegations that describe the basis for the plaintiff’s right to possession. If a money judgment is sought, the complaint should also clearly state the amount currently due and owing and should identify whether the amount is rent, unpaid assessments, or other money due to the plaintiff.

For a form, see Eviction Complaint (IL).

Serving the Summons and Complaint

Once the eviction complaint has been filed, summonses must be issued and served on the defendants. An eviction summons should require that the defendants appear in court on a specific date not less than seven days or more than 40 days after the issuance of the summons. Ill. Sup. Ct., R 101(b)(2). This varies from many other kinds of civil lawsuits in Illinois, which ordinarily only require the defendants to file an appearance and an answer or other affirmative pleading by a certain date; an eviction summons requires that the defendants actually come to the courthouse and appear in person before the judge.

Eviction summonses are served in the same manner as other civil lawsuits, usually by personal or substitute/abode service. Unknown occupants may be served by delivery of a copy of the summons and complaint to any tenant or occupant of the property who is 13 years old or older. 735 ILCS 5/9-107.5.

Service by Posting or Publication

In addition to these service methods, the Eviction Act allows plaintiffs an additional tool for serving hard-to-serve defendants: service by posting or publication. 735 ILCS 5/9-107. Service by these alternative means is only available under after the following prerequisites are met: • At least one prior summons was issued and returned without service being made –and– • One of the following is true: o The defendant or unknown occupant is not a resident of Illinois. o The defendant or unknown occupant has departed from Illinois. o The defendant or unknown occupant is concealed within Illinois. –or– o The defendant or unknown occupant cannot be found after due inquiry.

Service by posting or publication in an eviction lawsuit does not require the plaintiff to file a motion or to seek advance permission from the court. Instead, the plaintiff goes forward with service by posting or publication and then once the case returns to court, the judge evaluates whether the plaintiff has satisfied the prerequisites. If the judge determines that the plaintiff has not, they will quash the posting or publication and the plaintiff will have to go back and try to serve the defendants by personal or substitute/abode service. In the author’s experience, most judges in Illinois expect to see four or five attempts at personal or substitute/abode service by a sheriff or process server on different dates and at different times before they will approve a plaintiff making service by posting or publication.

To make service by posting, the plaintiff must first file an affidavit with the court stating that personal or substitute/abode service could not be obtained on the defendants and stating specifically that the defendant is not a resident of Illinois, or has departed Illinois or is concealed within Illinois, or cannot be found after due inquiry. Finally, this affidavit must state the defendant’s current address or their last known address if their current address is unknown. A separate affidavit must be filed for each defendant, including unknown occupants. Once the affidavits are filed, the plaintiff must prepare a separate posting notice for each defendant to be served. The notice must: • Address the defendant by name.

Page 12 of 19 Commercial and Residential Eviction (IL)

• State the nature of the case against the defendant and the time and place where the defendant must appear. • State that unless the defendant appears at the time and place specified, a judgment may be entered by default. • Specify what sort of default judgment is likely to be entered. • Be in the name of the county clerk of the circuit court.

Once the notices are prepared, the plaintiff must deliver them to the county sheriff, who will post them in three public places in the neighborhood of the courthouse where the case will be tried. The notices must be posted at least 10 days prior to the date set for the trial, so plaintiff’s counsel should be careful to set the trial date far enough out that the sheriff will be able to post the notices in time.

Service by publication is not nearly as common as service by posting because it is more expensive and takes longer, but it follows a similar procedure. The procedure begins with the plaintiff filing an affidavit identical to the one described above for service by posting (again, one affidavit must be filed per defendant). The plaintiff must then go to the clerk of the circuit court for the county in which the case will be tried and have the clerk publish a notice that states the following: • Title of the court • Title of the case • Names of the first named plaintiff and defendant • Case number • Names of the parties to be served by publication • Date, time, and location where the trial will be held

735 ILCS 5/2-206.

The clerk will also mail notice of the trial to each defendant. Id.

Service by posting or publication is an important and powerful tool for serving difficult-to-serve defendants, but it comes with a significant drawback: the plaintiff may not obtain a money judgment of any kind against defendants served by posting or publication. The plaintiff can still obtain an eviction order against said defendants, and they can be evicted from the premises pursuant to that order. But to obtain a money judgment of any kind, the plaintiff will have to go back and serve them by other means.

For forms, see Plaintiff’s Affidavit for Service by Publication or Posting (Eviction) (IL), and Notice of Hearing (Service by Publication or Posting) (Eviction) (IL).

Service by Alternative Means

Until recently, if personal service upon the defendants was seemingly impractical (perhaps because they were avoiding service), the plaintiff could file also motion seeking the court’s permission to serve them by alternative means. 735 ILCS 5/2-203.1. Motions for alternative service served as an alternate way to handle hard-to-serve defendants, particularly for plaintiffs who wanted both a money judgment and an eviction order. However, a recent decision by the First District Appellate Court has thrown this long-standing practice into doubt. Corlis v. Edelberg, 2018 IL App. (1st) 170049. The Corlis court found that service by alternative means under Section 203.1 could be used to obtain a money judgment only, while service by posting or publication could be used to obtain an eviction order (without money judgment) only. It remains to be seen whether other appellate districts in Illinois or the Illinois Supreme Court will adopt this position, which runs contrary to what had been a fairly regular practice. To be on the safe side, the best practice under present law for a plaintiff who is seeking both an eviction order and a money judgment is to effectuate service by both posting/publication and by the alternative means ordered by the trial judge after a 203.1 motion is granted.

Page 13 of 19 Commercial and Residential Eviction (IL)

For a form, see Eviction Summons (IL).

Pretrial Procedure

Once the defendants have been served, the eviction lawsuit proceeds in a manner like that of other civil lawsuits, with a few differences. Defendants to an eviction lawsuit are not required to file an answer unless ordered to do so by the judge. Ill. Sup. Ct., R 181 (b)(2). In the author’s experience, most judges do not order eviction defendants to answer unless they specifically request it. If no answer is filed, the defendant’s appearance is deemed to be a general denial of all allegations in the complaint, and the defendant may raise any defense at trial as if it had been specifically pleaded. Eviction lawsuits are not small claims and are generally not subject to the rules applicable to small claims lawsuits in Illinois. If an eviction defendant does file an answer, they should be careful to raise any and all affirmative defenses in the answer or risk waiving them when the case goes to trial.

Discovery

Although infrequently employed, the various discovery procedures allowed under the Illinois Supreme Court Rules are technically available in an eviction lawsuit, including interrogatories, requests for production of documents or evidence, requests for admission of facts, and even the deposition of witnesses. There are several practical bars to the use of discovery in an eviction lawsuit, however. Often neither the plaintiff nor the defendant has the budget for significant discovery, and many judges will be reluctant to allow a lot of time for discovery in an eviction lawsuit because evictions are supposed to be expedited proceedings. Most trial judges in Illinois do not suggest that the parties conduct discovery and will only set a discovery schedule if one side specifically asks for it (otherwise they will just set the case for trial and forgo discovery altogether). Finally, many eviction plaintiffs and defendants are self-represented and may not even know discovery is an option.

Nevertheless, discovery can be a useful tool in an eviction lawsuit if employed judiciously. Counsel for a defendant facing eviction may employ discovery requests as a means of buying additional time before the case goes to trial and locating evidence that helps to prove a defense. Eviction plaintiffs often have all of the relevant evidence and information in an eviction lawsuit, but they may occasionally employ discovery as a means of ferreting out documents or evidence in the defendants’ possession that cannot be obtained any other way. However, time is everything in most eviction lawsuits and most eviction plaintiffs want to go to trial quickly, so they can recover possession of the property as soon as possible. Because of this, plaintiff’s counsel should think carefully before issuing discovery requests that could delay the trial in the case.

Jury Demand

Generally speaking, both the plaintiff and any defendants in an eviction lawsuit have a right to trial by jury if they request it. Eviction plaintiffs must include a jury demand in the eviction complaint and must pay the applicable jury demand fee at the time the complaint is filed, or they waive the right to a jury trial. Eviction defendants should file their jury demand (and pay the applicable fee) on or before the date specified on the summons by which they must appear in court, or else they risk waiving the right to a jury trial. Many trial judges will allow eviction defendants a short continuance to file a jury demand if they have not done so on the first hearing date, but not every judge does this and so counsel for eviction defendants should take care to make sure they file the jury demand before the date specified on the summons if at all possible.

In residential eviction cases, any provision in a lease or contract that waives either the plaintiff or defendant’s right to a jury trial is unenforceable. 735 ILCS 5/9-108. The Eviction Act’s prohibition on lease provisions that waive the right to a jury trial do not apply to commercial leases. A waiver of the right to jury trial contained in a commercial lease is fully enforceable.

Pretrial Motions

The parties to an eviction lawsuit can also file any motions that would be allowable in any other civil lawsuit. Among these are:

Page 14 of 19 Commercial and Residential Eviction (IL)

• Motion for use and occupancy payments (see below) • Motions for summary judgment • Motions to dismiss • Motions to transfer venue

Motion for Use and Occupancy Payments

Illinois law also allows the plaintiff in an eviction lawsuit seek to recover the payment of the fair use and occupancy value of the subject property during the period that the defendants occupy it (including during the period that the eviction lawsuit is pending). 735 ILCS 5/9-201(2). This can form a cause of action for a money judgment for the use and occupancy value of the premises even in the absence of any kind of lease agreement between the plaintiff and defendants, meaning any eviction lawsuit could theoretically be filed as a joint-action if the plaintiff wanted to. Even if the eviction complaint itself does not include a count for a money judgment, Illinois courts have traditionally allowed the plaintiff to file a motion asking for use and occupancy payments at any time. The plaintiff can even ask for an award of use and occupancy payments for the period of time that the defendants occupied the property before the filing of the complaint, in addition to the period that the eviction lawsuit is pending in court. See People ex rel. Dep't of Transp. v. Cook Dev. Co., 653 N.E.2d 843, 848 (1995). The question of what the fair use and occupancy value of the subject property may be is a question of fact, to be determined at trial or at an evidentiary hearing.

Illinois law does not specify how the use and occupancy value should be paid, meaning that in practice trial courts have broad discretion to administer the use and occupancy payments as they see fit. The court may order the defendants to pay the plaintiff every month that the eviction case remains pending, or else face sanction for contempt of court. Alternatively, the trial court may order the defendants to make payments to the clerk of the circuit court to hold until trial of the case, only to be released after the case has been tried and the plaintiff actually wins (or else returned to the defendants, if the plaintiff loses). Or the trial court could grant the motion but not order that any monthly payments be made, instead just adding the monthly use and occupancy payments into the final money judgment once the case has been taken to trial. However, the trial court may not award summary judgment to the plaintiff as a punishment for the defendants’ failure to make court-ordered use and occupancy payments; the plaintiff must still prove its case and show that it is actually legally entitled to possession. See Rotheimer v. Arana, 892 N.E.2d 1183, 1195 (2008).

A motion for use and occupancy payments can be a powerful tool for plaintiff’s attorneys, either to add to the ultimate money judgment in an eviction case, or to check defendants (or defense counsel) who are inclined to use procedural mechanisms to try to delay an eviction case as long as possible. Prolonged litigation becomes much less attractive when defendants know that they must pay the plaintiff for every month that the case remains pending, in addition to paying their own litigation fees and costs. However, plaintiff-side attorneys should carefully consider whether seeking use and occupancy payments is prudent, lest they make their client spend additional legal costs or fees in return for a worthless judgment against an indigent defendant.

Eviction Trials

In keeping with the expedited nature of an eviction lawsuit, many judges are willing to have a bench trial on the very first court date after service is obtained unless one side or the other specifically asks for a continuance. Unfortunately, in the author’s experience, judges throughout the state have radically different attitudes about just how expedited eviction lawsuits should be; some judges will attempt to strong-arm the parties into a trial right away, while others are content to continue eviction lawsuits repeatedly for just about any reason.

If a jury demand has been filed, the eviction case will almost certainly not go to trial on the first court date. Evictions that go to jury trial in Illinois are subject to almost all the same rules as any other jury trial, and most judges treat an eviction with a jury demand more like a conventional civil lawsuit and less like a summary, expedited proceeding. They will often set a discovery schedule on the first hearing date and set a date for a pretrial conference a few days

Page 15 of 19 Commercial and Residential Eviction (IL) before the actual jury trial date. Jury instructions must still be produced, and this is made more difficult for attorneys who have little eviction experience because there are no Illinois Pattern Jury Instructions specific to eviction cases. Eviction lawsuits are also subject to all of the Illinois Rules of Evidence, just like any other lawsuit, and both sides in an eviction lawsuit can file motions in limine.

Defenses

Many eviction defendants have no realistic defense, and for these defendants the goal is usually to negotiate a favorable settlement with the plaintiff or else drag the eviction lawsuit out for as long as possible to buy time to move out of the subject property.

Improper Notice

The most commonly successful defenses, in the author’s experience, are based upon defects in the pre-suit notice or in the means of serving the pre-suit notice. As mentioned above, a pre-suit notice that is missing required statutory language or one which is not sufficiently clear can be grounds for dismissing an eviction lawsuit. Likewise, a pre-suit notice that is not properly served can form a basis for dismissal as well. Since the Eviction Act requires that many pre-suit notices be served personally, or by abode/substitute service, or that they be signed for if served by certified mail, it can often be very difficult to serve a particularly evasive occupant properly. A plaintiff who tries to cut corners in the means of serving the pre-suit notice may inadvertently set the eviction lawsuit up for failure. In the case of pre-suit notices demanding unpaid rent or condominium assessments, if the amount demanded by the pre- suit notice is not correct, that can also be grounds for a successful defense.

Retaliation

In landlord-tenant evictions, another common defense is that the landlord is trying to terminate the lease in retaliation against the tenant for some lawful complaint or activity. The Illinois Retaliatory Eviction Act prohibits a residential landlord from terminating or refusing to renew a residential lease on the grounds that the tenant has complained to a governmental authority of a bona fide violation of any applicable building code, health ordinance, or similar regulation. 765 ILCS 720/1. Chicago’s RLTO contains a much more sweeping prohibition against retaliatory conduct, barring residential landlords from terminating a lease, increasing rent, decreasing services, refusing to renew a lease, or threatening to sue the tenant in retaliation for the tenant making a wide variety of complaints to government agencies, elected representatives, public officials, community organizations, or news media. Chicago, Illinois Code of Ordinances Sec. 5-12-150. The RLTO also prohibits landlords from retaliating against tenants for requesting repairs, joining a tenant’s union or other organization, testifying in a court proceeding or exercising any other right or remedy provided by law. Id. A tenant who can successfully prove a violation of the RLTO’s retaliation provisions cannot only get the eviction lawsuit dismissed but can also recover two months’ rent or twice the damages sustained by the tenant (whichever is greater), plus the tenant’s court costs and attorney’s fees. Id.

Neither the Illinois Retaliatory Eviction Act, nor the RLTO, apply to commercial evictions.

Defenses in Foreclosure-Related Evictions

Evictions arising out of a foreclosure have very few defenses available to defendants. A defendant with a bona fide lease (as previously described above) can raise defenses based on a defect in the 90-Day Notice or the means that the notice was served. Additionally, if the plaintiff filed their eviction lawsuit before the term of the bona fide lease had run out, the defendant can have the eviction lawsuit dismissed for being prematurely filed. 735 ILCS 5/9-207.5. Defendants in a foreclosure-related eviction who do not have bona fide leases typically have no defense if the complaint is technically correct and the summons was properly served.

Defenses in Evictions for Unpaid Condominium Assessments

Likewise, evictions for unpaid condominium assessments offer few opportunities for a successful defense other than technical defects in the complaint, the 30-Day Notice, or the means of service. Defendants in these cases are

Page 16 of 19 Commercial and Residential Eviction (IL) typically best advised to pay the unpaid assessments quickly, if possible, before the association’s attorney’s fees begin to snowball.

Sealing Orders

Eviction lawsuits, like any other civil lawsuit, are matters of public record. Because of this, private background checking companies often check to see if an eviction lawsuit was filed against someone. Many landlords refuse to rent to someone who has been a defendant in an eviction lawsuit, no matter how long ago or what the circumstances were. Others will require a larger security deposit or payment of rent in advance. The use of commercial background checks by residential landlords in screening tenant applications has become so ubiquitous that the mere filing of an eviction lawsuit against someone can make it much more difficult for them to rent an apartment.

Because of this, Illinois law provides two statutory bases for sealing the court records to prevent the general public from accessing them or even finding out that the eviction lawsuit was ever filed in the first place. First, Illinois law requires the court records of every eviction lawsuit arising out of a foreclosure to be sealed. 735 ILCS 5/15- 1701(h)(6). The rationale behind this statute is that the occupants of a foreclosed property are often tenants or family members of the foreclosed former owner and should not be penalized just because the owner’s property was foreclosed upon. In many counties, the clerk’s office will seal the records automatically when the case is filed as long as it is clear that the case is a foreclosure-related eviction. In other counties, the case file is not automatically sealed and either the plaintiff or one of the defendants must file a motion to bring the matter to the court’s attention so that the judge can enter a sealing order directing the clerk’s office to seal the records.

For other eviction cases that do not arise from a foreclosure, the trial judge has the discretion to seal the court file (either upon motion by one of the parties or on the court’s own motion), but only if the court finds that (1) the plaintiff’s action is sufficiently without a basis in fact or law, which may include lack of jurisdiction; (2) placing the court file under seal is clearly in the interests of justice; and (3) those interests are not outweighed by the public’s interest in knowing about the record. 735 ILCS 5/9-121(b). Sealing the court file is so important to some defendants that some plaintiffs will offer to agree to seal the records as a bargaining chip to obtain a settlement of some kind from the defendants. However, agreeing to seal the records under Section 9-121(b) is tantamount to the plaintiff admitting that they filed a baseless eviction lawsuit, and may raise ethical concerns for the plaintiff’s attorney. Additionally, while many judges will agree to seal the court file if both parties agree that it should be sealed, the judge ultimately has the discretion to refuse to seal the file despite the agreement of the parties.

A sealed court file can only be accessed by law enforcement officers or government personnel except by order of court. Additionally, sealing typically prevents any records of the case from being accessed on the clerk’s website (searching for the case number or caption will yield “no results found”). Typically, this prevents the eviction lawsuit from appearing on a background check. However, some background checking companies appear to scrape public records periodically, gathering data about all open eviction cases even if they are not conducting a background check for any specific person. If the court file was sealed only after the case had been pending for a while, it is possible that the background checking company already has knowledge of the lawsuit in their internal records.

Lockout

Assuming the plaintiff wins the trial, the judge will enter an eviction order in the plaintiff’s favor as well as a money judgment (if applicable). For residential evictions, the Eviction Act requires the use of a form eviction order provided by the Illinois Supreme Court, so plaintiff’s counsel should make sure to use the state-mandated eviction order. 735 ILCS 5/9-109.6. The statutorily required order can be found here: http://www.illinoiscourts.gov/Forms/approved/eviction/Eviction_Order_Approved.pdf.

Once the plaintiff has won the eviction lawsuit and obtained an eviction order, the final phase of the eviction process is the post-judgment phase where the county sheriff goes to the property and evicts the occupants, putting the plaintiff into possession of the subject property.

Page 17 of 19 Commercial and Residential Eviction (IL)

When they enter an eviction order in the plaintiff’s favor, most judges in Illinois will stay the enforcement of the order by a short period of time, usually seven to 30 days. This stay period is imposed to give the defendants some time to get their affairs in order and (ideally) move out of the property voluntarily so that they are not subjected to the indignity of being forcibly removed by the sheriff. It is not uncommon for judges to impose a stay on an eviction order even if the defendants never came to court, or to still impose a stay period even if the defendants successfully delayed the eviction trial for many months. Once the stay period has expired, the plaintiff can send the eviction order to the county sheriff and ask them to schedule an eviction.

Delaying the Lockout

Once the eviction order has been placed with the county sheriff and any applicable fee paid, the sheriff will contact the plaintiff or their attorney and schedule a date to perform the lockout. Depending on the county, it may take several weeks from the date the eviction order is given to the sheriff to the date the lockout actually happens. During the period between when the eviction order is given to the sheriff and when the lockout happens, the defendants may file post-judgment motions in the eviction case (most commonly a motion to vacate an eviction order entered by default, or a motion asking the court to extend the stay on the eviction order to give the defendants more time to move out). There is no statute in Illinois stating that the filing of a post-judgment motion prevents the lockout until the motion is ruled on, but many county sheriffs will refuse to go forward with a lockout if the defendant files a post-judgment motion within 30 days of the date the eviction order was entered, until the motion is ruled on. The sheriff will usually only postpone the lockout for the first post-judgment motion filed in a case, but this can vary from county to county.

It is the defendant’s responsibility to make the county sheriff aware of the filing of a post-judgment motion, usually by delivering a copy of the motion to the sheriff’s office. Counsel for eviction defendants should not assume that the county sheriff will automatically know that a post-judgment motion has been filed—most county sheriffs do not check the court file or online docket before conducting a lockout so the lockout will most likely proceed if the defendant or their attorney does not notify them. Finally, there are a minority of counties in Illinois where the county sheriff will not cancel the lockout just because a post-judgment motion was filed (unless the court actually grants the motion and stays the lockout or vacates the eviction order). Counsel for eviction defendants should make sure they know how the county sheriff will react to a post-judgment motion before assuming that filing one will, in and of itself, delay a lockout.

Eviction lawsuits can be appealed in the same manner as any other civil lawsuit. However, the fact that an eviction lawsuit is being appealed does not prevent the eviction of the defendants (if an eviction order was entered against them) in and of itself. Instead, defendants seeking a stay of eviction while the appeal is pending must file a motion asking for a stay and the court has the discretion to grant or deny it. This motion can be filed before either the trial court, or the appeals court—both have authority to stay the eviction order while the appeal is pending, if they so choose. The denial of a motion for a stay of eviction by the trial court does not prevent the appellate court from granting a stay, or vice-versa. This motion may be granted (or denied) immediately, or the court may choose to brief the motion and/or hear oral argument from both sides before ruling on it.

Lockout Procedures

On the date of the lockout, the plaintiff or their agent or representative must meet the sheriff’s deputies at the property. If there is no one present to meet the deputies, the lockout will be cancelled, and the plaintiff will have to schedule a new one (and potentially pay a second lockout fee). Some county sheriffs require the plaintiff to provide a locksmith to change the locks once the lockout is over or else they will cancel the lockout, but it is the best practice for the plaintiff to bring a locksmith even if the sheriff does not require it.

There is no statute in Illinois that mandates specific procedures a sheriff to conduct the lockout, so individual county sheriffs have developed their own procedures that sometimes vary radically. Some county sheriffs will remove not only the occupants themselves but will also take all their personal property out of the premises and place it on the curb or on the front lawn. Other county sheriffs require that the plaintiff bring movers to the lockout and then require the movers to take all of the personal property out. Depending on the county, the plaintiff may also be required to bring tarps to cover the personal property to protect it from the elements. Still other county sheriffs (including the

Page 18 of 19 Commercial and Residential Eviction (IL)

Cook County Sheriff, which serves the county that Chicago is located in) will simply remove human occupants and allow the plaintiff to change the locks, leaving all personal property locked inside the subject property and leaving the plaintiff and the occupants to work out the removal of the personal property between themselves, without the involvement of sheriff’s personnel.

To prepare for the lockout, the plaintiff’s counsel should familiarize themselves with the local requirements set by the applicable county sheriff and advise their client whether or not they will be required to bring a locksmith, a moving crew, moving trucks, tarps, or other supplies. The failure to bring all of the elements required by the local county sheriff will usually result in the lockout being cancelled and it could take weeks to schedule another one.

Disposition of Personal Property

Once the lockout has been completed and the plaintiff has taken possession of the property, an unwelcome final element of the eviction process is the disposition of any personal property left behind by the evicted former occupants. Illinois does not have a statute that specifies what the plaintiff’s responsibilities are specifically with respect to these items, or that provides the plaintiff with a shield against liability in the event that the plaintiff makes the wrong decision. In counties where the sheriff’s deputies do not remove the personal property or require the plaintiff to hire movers to do it, the plaintiff can be left with a building full of someone else’s things after the lockout is complete.

In general, the rule in Illinois is that personal property remains the property of its owners, even after they have been evicted. If the plaintiff damages, destroys, or throws the former occupants’ personal belongings in the trash they can be held liable for various personal property torts (most commonly conversion, trespass to chattels, and negligent or intentional damage to personal property). The main exception to this rule is if the personal property has been abandoned, which is defined as property being left by its owner with the intent of relinquishing all rights to it. See Vill. of Northfield v. BP Am., Inc., 933 N.E.2d 413, 419 (2010). Abandoned personal property can be freely disposed of, or even taken by the owner for their own personal use.

Assuming the evicted former occupants still want their remaining personal property, the best practice for the plaintiff is to arrange for them to come and retrieve their belongings under supervision. If the occupants cannot or consistently fail to retrieve their personal items, then the plaintiff can have them moved out of the premises as long as they are not damaged or destroyed in transit.

Upcoming Release of Standardized Illinois Eviction Forms

The Illinois Supreme Court Commission on Access to Justice is in the process of drafting and approving standardized eviction forms for use throughout the state. Once each form is completed and approved, it will be available for anyone to use. Using the Illinois Supreme Court standardized forms is optional (except for the form Eviction Order, which is mandatory for residential evictions under the terms of the Eviction Act), but court and sheriff’s personnel will be required by Supreme Court Rule to accept the standardized forms as long as they are properly filled out (that is, they cannot require that the litigant use a different form for the same purpose). (The author of this practice note sits on the subcommittee currently drafting these forms.) The forms that you can access through this practice note are legally sufficient for their stated purposes, but if you are interested in the standardized forms provided by the Illinois Supreme Court once they are approved, they can be found here: http://www.illinoiscourts.gov/Forms/approved/eviction/eviction.asp.

End of Document

Page 19 of 19