Legal Rights and Responsibilities of Landlords
Many of our clients are landlords who have gone into foreclosure (or are at risk of foreclosure) because they have tenants who stopped paying rent or otherwise violated the terms of their lease. Other landlords are not at risk of foreclosure but still need or want to exercise their legal right to evict their tenants and re-take possession of their property. The eviction process in Illinois is tedious and closely regulated by state and local law. If the property is situated in the City of Chicago, tenants are afforded additional protections under the City of Chicago Residential Landlord Tenant Ordinance (Chicago Municipal Code § 5-12-010 et seq.).
If you are an Illinois landlord, your written lease should always comply with applicable state and local laws. The best way for landlords to avoid costly litigation with their tenants is to be sure the written lease they use is fully compliant with all of these laws. The Chicago Residential Landlord Tenant Ordinance (the RLTO) only applies to properties in the City of Chicago, but best practice dictates that all landlords in Illinois, especially Chicagoland, should comply with its requirements. Having an RLTO compliant lease in place makes the eviction process easier in all Illinois courts, and is an absolute requirement for all rental properties in the City of Chicago.
The Chicago City Council passed the RLTO in 1986 to protect the public health and safety of Chicago’s renters. It contains the rights and duties of both landlords and tenants. A summary of the RLTO can be found by clicking here.
The RLTO applies to all apartment buildings in Chicago unless the building has 6 or fewer units and the landlord lives there. Even if your building is not covered by RLTO, your tenants still have rights under Illinois law. Using best practices that ensure the protection of your tenants’ rights makes you a better landlord and definitely makes for happier tenants. Hopefully, you won’t end up in court with your tenants; should it come to that, if you have taken steps to protect your tenants’ rights, you will have a smoother time in eviction court.
The Eviction process
An eviction lawsuit is initiated by providing the tenants notice that the landlord intends to initiate eviction proceedings. In some cases, the notice may provide that they must “pay rent or quit” (move out). In others, the notice may simply alert the tenant that they are going to be evicted no matter what they do, either because they have violated the lease, or they don’t have a lease and the landlord wants to terminate the tenancy. The content of the notice and how far in advance the notice must be provided depends on why the tenants are being evicted. Different notice requirements exist for evictions for non-payment, those for other breaches of the lease, and for evictions of tenants with a month-to-month lease or no lease at all.
Once the tenants have been served the notice of intent to evict, the landlord commences the eviction lawsuit by the filing of a “complaint in a forcible entry and detainer” in the judicial circuit where the property is located. If a landlord wants to recover past due rent, late fees, court costs or attorney fees in the suit, they must file a “joint action.” If they just want to evict the tenant and re-take possession of their property, they can file suit for possession only. Attorney fees are only recoverable from the tenant in an eviction lawsuit if the lease specifically provides for it. Once the complaint is filed, the circuit court clerk will generate a trial date and place it on the file-stamped complaint. All civil court filing must now be done electronically. The clerk’s office in each circuit has staff that can help self-represented litigants with the e-filing process, though pitfalls are common and greatly increase the amount of time it takes to remove a non-paying or other problem tenant.
Once the suit has been filed, the landlord must have his tenants served with a summons to appear in court and the complaint. In every jurisdiction, absent a court order to the contrary, the county sheriff must be given the first opportunity to serve the summons and complaint before they can be served by anyone else. If the sheriff is unable to get the tenants served, the landlord must get an order from the court appointing a special process server to obtain service. In most every jurisdiction, the special process server must be licensed, though some jurisdictions allow service by any adult who is not connected to the case or related to the litigants.
On the assigned trial date, the landlord or their attorney must appear in court, as must the tenant or their attorney. The judge or their clerk will call the case. If the landlord can show that his tenants have been served, and has adhered to the law in every aspect of the eviction filing, they will be allowed to prove their case upon the first trial date. But tenants have rights too; if they appear in court, they may be referred for free legal assistance or just given additional time by a merciful judge. There are also attorneys who specialize in tenants’ rights. These lawyers will use the eviction litigation to extend the time it takes to evict the tenants even if there are no valid defenses to the eviction. And if there are valid defenses—such as allegations that the landlord did not maintain their property in a safe condition or make major repairs when asked—the eviction process can become a very lengthy battle, especially if the landlord does not have their own attorney to handle the process and correctly follow the law.
Once an eviction judgment is entered, the court will produce an order that the tenants must leave the property by a certain date. If applicable because the landlord filed a joint action, this order will also provide that the tenants must pay the landlord money damages for past due rent and late fees, court costs, and attorney fees (if allowed by the lease). On the date specified in the eviction order, if the tenants have not moved out voluntarily, the landlord can place the order with the county sheriff, who will physically do the eviction for a small fee. Only the sheriff can evict a tenant, and only after an eviction order is entered. Landlords are strictly prohibited from engaging in “self-help”—they cannot take it upon themselves to evict their own tenants under any circumstances.
Self-represented landlords who do not know the intricacies of the legal system and eviction process can often face a drawn-out eviction process that results in huge financial losses as their property sits vacant or becomes damaged by a bad tenant. Landlords are best served by hiring an experienced eviction lawyer to manage this process for them.
Having a knowledgeable attorney handle the eviction the process can turn a stressful, months-long process into something that is much more manageable, and less stressful and time consuming for landlords. Often, it is possible for an experienced eviction attorney to get a landlord’s non-paying or problem tenant evicted within weeks. Then they can be replaced with a paying tenant and the landlord’s property can resume producing income like it was designed to do. If you need to re-take possession of your rental property and evict your tenants, contact Lou Brydges & Associates today for a free case consultation.