“The complete process of evicting a tenant in Illinois involves five distinct steps although the occurrence or execution of all the five steps may not be necessary for the tenant to lose her right to possession: the first essential step is that the tenant must be delinquent in her rent, second, the landlord must notify the tenant, in writing, that the rent must be paid within no less than five days, third, the specified time period mentioned in the notice must pass without tender of payment by the tenant, fourth, the landlord must sue for possession or maintain ejectment and obtain a judgment for possession and fifth, a writ of possession issued pursuant to the judgment for possession.“
Robinson v. Chicago Hous. Auth., 54 F.3d 316 (7th Cir. 1995) (a concise description of the process to evict for non-payment of rent).
While the majority of landlord-tenant relationships function without all that much trouble, occasionally, landlord-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 by its own terms or to terminate a month-to-month tenancy. If the tenant will not voluntarily turn over possession and vacate the rental premises, the landlord may be forced to evict the tenant by bringing a “forcible entry and detainer” lawsuit.
First things first
Landlords may evict tenants for various reasons (for a discussion of the types of notices and our notice drafting service, click here) 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 courts expect strict compliance with the provisions of the statute. To ensure a successful and legal eviction, landlords must be careful to fully comply with the letter of the law. 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, in what is known as a “joint action”, a landlord may also be able to obtain a judgment for rent due the landlord. Once an order for possession is obtained, a landlord still does not have a right to personally remove a tenant. 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 rental premises.
Although our firm does not generally represent tenants in eviction defense cases, we believe that significant abuses can and do also occur on the landlord side of things. If you are a tenant in need of advice, you may be able to obtain assistance from the Center for Renter’s Rights, the Chicago Metropolitan Tenant Organization, or any number of other public interest groups or private attorneys who assist tenants with their rights.
Length of an Eviction
Even an action which follows the letter of the law may be a lengthy, albeit 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 60 days must be issued and served on a tenant before a complaint may be filed. Usually, this first notice is served by the landlord or some other adult . After filing an eviction complaint, in those cases filed in Cook County’s First District (Daley Center), it usually takes between two to three weeks before the initial “return date”. In the Cook County districts outside Chicago and in some of the collar counties such as Lake and DuPage, the time for an initial hearing can be longer. During the time between filing and the initial hearing, tenants must be served 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 appointed by the court. 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. If the tenant files an answer and contests the case, the procedure is more lengthy and the process may be delayed even further if a jury trial is requested by the tenant. If the tenant has not moved out by the end of the “stay”, the county sheriff will come out and forcibly remove the unlawful tenant. As the sheriff’s office is usually backlogged, this can take anywhere from three to fifteen weeks. The entire process can take, at a minimum, about two and a half to three months and can sometimes take much longer, depending upon the facts of any individual case. The law, however, provides little else in the way of legally ejecting a tenant. The length of the eviction process is often a source of landlord frustration, however, knowing a general time frame 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
Reda | Ciprian | Magnone, LLC handles most aspects of the eviction process. For those landlords who need help in drafting an appropriate notice of termination of tenancy, we will routinely review your lease and/or tenancy situation and provide services for the preparation of termination notices to tenants (5, 10, or 30 day notices) usually for for a fee of $100.00 (approx. 25 minutes at $240 per hour).
For landlords who want help with the eviction process, while each case is different, we handle all phases of the eviction process, including 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; and arranging the placement of the eviction order with the county sheriff for execution.
For our eviction services, for attorney time, we bill $240 per hour and for clerk time, $85 per hour. In all cases, clients must pay all costs of the lawsuit. For simplicity sake, for residential evictions, we charge a flat $550 plus costs for the initial preparation of summons and complaint, tracking service of process, communicating the results of service of process to the client, preparing for court and making the initial court appearance. For all attorney work not included in the initial $550, we charge our hourly fee of $240 per hour plus costs*.
*costs vary depending upon the number of defendants/adults residing in the property, whether or not a special process server is required, whether the tenant presents a defense, 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 the appropriate eviction notice and serve it upon the tenant. 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, Robert Cooper or Jim Tozzi at 773-399-1122.
The majority of evictions we handle are in Cook County, and depending on our caseload, we also sometimes handle cases in Lake and DuPage County. Feel free to contact us and if we cannot assist, we might be able to provide a referral to an attorney in any of the collar counties surrounding Cook County.
We are generally willing to have a short (5 to 10 minutes) initial discussion over the telephone to determine if we can assist in your situation and to determine if we might be an appropriate match to work with you. Keep in mind, we do not get involved in eviction cases that have already been filed with the court.
Face to face Initial consultations are by appointment only and a consultation fee is generally charged. If you have any questions, contact Richard Magnone via email or by phone at 773-399-1122.