While most landlords and tenant relationships function without much difficulty, occasionally, landlords and tenant relations break down.  In some cases, the tenant fails to pay rent or breaks a term of the lease, in other cases, the landlord may merely wish to allow a lease to end or to terminate a month to month tenancy.  If the tenant will not vacate the property voluntarily, the landlord may have no option other than to evict the tenant by way of a "forcible entry and detainer" lawsuit.

Landlords may evict tenants for various reasons including, nonpayment of rent, violations of lease terms, or for the improper possession of property after a tenancy has terminated.  Eviction actions are strictly governed by the Forcible Entry and Detainer Act (735 ILCS 5/9-101). This law was enacted in response to legislators' perception that, over the years, landlords have engaged in  unfair (and sometimes illegal) eviction practices.  The law attempts to provide a fair and workable system for both tenants and landlords. As such, the provisions of the act must be strictly and expressly complied with to ensure a successful and legal eviction. Many complexities and local court customs exist in this field of law.  A landlord is commonly faced with questions such as: "where should I file the lawsuit?"; "when is it legal to file the lawsuit?"; "what should I include in the complaint?"; "what kind of damages can I request, if any?"; "what if the tenant defends against the action?"; and "how is an order of possession enforced?".

The main goal in an eviction action is to obtain an "Order for Possession" from the Court. This order grants a landlord the right to retake possession of a rental property from the tenant.  In addition, a landlord may also be able, in what is known as a "joint action", obtain a judgment for rent due the landlord. Once obtained, a landlord does not have a right to personally remove a tenant, but instead, the landlord must call upon the County Sheriff to remove the tenant.  In almost all cases, a Judge will grant a "stay of Enforcement" of the Order for Possession so that the tenant has some time to find a new residence. Once the stay expires, a landlord may direct the sheriff's department to forcibly remove the tenant from the premises.

Although our firm does not accept tenant eviction defense cases, we believe that significant abuses can and do also occur on the landlord side of these disputes. If you are a tenant in need of advice, you may be able to obtain assistance from the Center for Renter's Rights or the Chicago Metropolitan Tenant Organization.

LENGTH OF AN EVICTION ACTION

Even an action which follows the letter of the law may be a lengthy, but necessary endeavor. In most cases, depending upon the circumstances of the case, a notice, with strict time and form requirements, of anywhere from 5 to 30 days must be issued and served on a tenant before a complaint may be filed. Usually, this first notice is served by the landlord personally. Upon filing the complaint, it usually takes between two to three weeks before the initial court hearing. During that time, tenants must be served personally or constructively by the Sheriff's office with a copy of the summons and complaint filed in the case. If the sheriff cannot serve the summons in time, the initial hearing date must be delayed until proper notice is given, usually by a special process server. The Illinois courts have ruled that making on attempt with the Sheriff is not enough of a good faith attempt to serve the tenant before filing a posting notice. As such, the procedure after failing to obtain service via the Sheriff is generally to hire a special process server. Assuming the case is uncontested and all documentation and notices have been prepared and presented correctly, a Judge will usually enter an "Order for Possession" and then "stay" or postpone the enforcement of the "Order for Possession" anywhere from one to three weeks, depending upon the facts of the case. If the tenant files an answer and contests the case, a trial may be required and may be delayed even further if a jury is requested. If the tenant has not moved out by the end of the "stay", the Police Department of the county in which the property is located will come out and forcibly remove the unlawful tenant. As the Sheriff's Office is usually backlogged, this may take anywhere from two to three weeks. The entire process can take as long as four months, longer in the case of a trial. The law, however, provides little else in the way of legally ejecting a tenant. As such, the length of the eviction process is frustrating, however, knowing a general frame of time before beginning the process can sometimes ease a landlord's anxiety and expectations.

COMMON EVICTION PROBLEMS

What follows are a number of events which may cause problems during the course of an eviction action. This list is by no means complete and is merely an attempt to demonstrate the complexity of this area of law and the potential pitfalls which may derail an unsuspecting landlord.

Often, a case may be filed prematurely. Plaintiff-landlords must understand and abide by the proper applicable period of notice to a tenant before an action may be filed. Many actions are summarily dismissed because they are filed too early. This error cannot be cured! In such a case, the landlord must begin the process again, incurring more legal fees and costs, lost time, and most important, the tenant will be enjoying a longer rent free vacation in the landlord's property.

The notice served on the tenant must be the proper notice.  There are different notice periods depending upon the written lease and the reason for termination of the tenancy.  In addition, the Illinois statute requires certain notations to be included on the Notices given to the tenant for that notice to be effective. Second, the Notice delivered to the court should contain an affidavit of service to be signed and sworn to by the person delivering the notice.

Sometimes, a tenant may appear in court and claim that he did not receive proper notices from the landlord. As such, it is sometimes a good practice to bring along a friend who can act as a witness to the service of the notice or make detailed notes regarding the occasion of the service such as the time, what the parties were wearing, what was said by the parties and other facts that will tend to lend veracity to the landlord's testimony in court.  If a witness cannot assist, making notations about the facts and circumstances surrounding the service of the notice on the back page of the notice is also helpful.  

In some cases, a tenant may be able to "hide" when the landlord wants to serve a notice or the Sheriff arrives to serve eviction papers. In such cases, a landlord may wish to hire a "special process server" to give service of process to the tenant. These "professional" process servers cost a little more than the sheriff (usually from $75 to $150), but they have a higher success rate in serving defendants and the higher cost of service may be of value, as a tenant may be able to evade the police and cause a delay of anywhere from two weeks to a month before service of the tenant is given and a new trial date may be obtained.  Currently, the law requires that all landlords make at least the first set of attempts through the county Sheriff.

Landlords must be careful in drafting their notice and complaint to include the names of all adults residing in the premises, not just those listed on the lease. If the landlord does not know the identity of certain adults in the property, those persons can be identified as "unknown occupants".  Many landlords have been disappointed to find that their order for possession applies only to those adults named in the lawsuit. The Sheriff will allow all other adults not listed in the Order to remain on the premises. In addition, a five day notice should only include rent due from the tenant - not late fees, interest nor any additional charges.

SERVICES AND FEES

We handle most aspects of the eviction process.  Our firm will routinely review your lease and tenancy situation and preparation a notice of termination to tenants (5, 10, or 30 day notices) for a fee of $75.00;

Other services include, preparation and filing of summons and forcible entry and detainer complaint; arranging for service of process by the county sheriff and by special process server if necessary; preparation for court, including review of service and defendant's answer and motions, if any; court appearances for complaints and any motions related to complaint;arranging the placement of the eviction order with the county sheriff for execution. 

For our eviction services, we charge an hourly fee of $225 per hour plus costs.*  The minimum amount of attorney time on a "standard" eviction will generally be about two and one half hours.  The "usual" uncontested eviction usually requires approximately 3 hours of attorney time.  

*costs vary, but usually range from $400 to $600 depending upon the number of adults residing in the property, whether or not a special process server is required and whether or not the Sheriff must remove the tenant from the premises.  

For further information on eviction costs, click here.  

HOW TO GET STARTED  

The first step to the eviction process is to prepare a notice to the tenant that is to be evicted and serve it upon him. Depending upon the reason for the eviction, the notice may be for 5, 10, or 30 days or some other time based upon the lease. To get this process started, please feel free to contact Richard Magnone or one of our eviction associates, Carla Fiessinger or James Tozzi at 773-399-1122. The majority of evictions we work on are in Cook County, and depending on our caseload, we also sometimes handle cases in Lake and DuPage County.  

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DISCLAIMER This website is intended to supply general information to the public. Although the information is generally accurate, it cannot be guaranteed. The nature of Legislation is that the law can change quickly and visitors should always insure that legal information is accurate before acting.  Nothing herein creates a landlord tenant relationship and the information contained in this website should not be construed as legal advice upon which a reader can rely.  The law and customs in your jurisdiction may be different. This information is necessarily brief and may or may not apply to your situation. In all cases, PLEASE, consult a lawyer before acting.

This website is intended to be advertising, and not solicitation, or legal advice. Thus, the reader should not consider this information to be an invitation for an attorney-client relationship, should not rely on information provided herein, and should always seek the advice of competent counsel in the reader's state.

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