|Does an Eviction Notice Have to be Notarized?||
Last updated: April 2010
The following questions were submitted to John Roska, an attorney/writer whose weekly newspaper column, "Q&A: The Law," runs in the St. Louis Post-Dispatch (Illinois Edition) and the Champaign News Gazette. This article was published on April 1, 2010.
Q: I served an eviction notice on a tenant. It was a 5 day notice, saying he owed rent. The tenant says the notice is no good because it’s not notarized, and because I didn’t have the sheriff serve it. Is that right?
A: No. It’s a common myth that eviction notices aren’t “legal” unless they’re notarized. They don’t have to be notarized, and they don’t have to be served by the sheriff. Anyone can serve an eviction notice.
A legal eviction takes two steps: notice, and a court case. “Self-help” evictions, where the landlord skips the court case, and simply changes the locks, shuts off the utilities, or removes the tenant’s property, are illegal. Landlords resorting to self-help risk liability for any damages they cause by an illegal eviction.
The first step in the legal eviction process is written notice. There are three main kinds: 5 days for non-payment of rent; 10 days for a breach of the lease; and 30 days to end a month-to-month lease. Most evictions are for non-payment of rent, so most eviction cases begin with a 5 day notice.
A proper 5 day notice identifies the rental property, states a dollar amount of the rent owed, and tells the tenant that if they don’t pay within 5 days, the lease (or “tenancy”) will be terminated. A 5 day notice is ONLY for unpaid rent—it should not include other debts, like unpaid deposits, late charges, or repairs.
Eviction notices often are notarized, but they don’t have to be. When they are, it’s really a copy that’s notarized, AFTER it was served, showing who served it, and how. That notarized statement about how the notice was served can then be offered as proof in the court case that the notice was actually served.
But since that notarization is about how the notice got served, it shouldn’t occur until after the tenant gets served. If it already appears on the version served on the tenant, it’s premature, and raises doubts about how truthful the statement about service is.
Anyone can serve an eviction notice. It’s not like a summons, that can only be served by a sheriff, or a licensed process server. However, notices can only be served on the tenant, or on “some person of 13 years or upwards, residing on or in possession of the premises.” That means the tenant can be served anywhere, but the other persons must be served at the premises.
Personally serving an eviction notice requires that it be handed to someone, or dropped close to them in their presence. It does NOT mean posting the notice, or sliding it under a door, or leaving it on the kitchen table.
Service by certified mail is also OK, as long as there’s a “returned receipt from the addressee,” to prove the tenant got it. Actual receipt of the notice is what the law requires.
The day the notice gets served doesn’t count in the 5 days the tenant gets to catch up their rent. Paying what’s owed within 5 days should stop the eviction. If the tenant doesn’t pay what’s owed—or there’s a dispute over whether what was paid was what’s owed—the landlord can take step two, and file an eviction case in court.
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