|Evicting a Tenant||
Last updated: January 2014
As a landlord, you can evict your tenant if the:Tenant does not pay the rent when it is dueTenant violates any of the terms and conditions of the leaseTenant damages your propertyLease comes to an end and your tenant does not leave your propertyYou cannot evict your tenant:For complaining to the building inspector about your propertyFor not paying rent if the tenant left the premises for a period of time because of domestic violence or the immediate threat of domestic violenceBased on the tenant’s race, color, national origin, ancestry, order of protection status, sex, disability, religion, unfavorable discharge from the military service, military status, age, marital status, or sexual orientationClick on words that appear like 'this' to learn what these words mean.As a landlord, when can I evict my tenant? As a landlord, you can evict your tenant if:Tenant fails to pay the rent when it is due;Tenant violates any of the terms and conditions of the lease agreement;Tenant damages your property;Lease comes to an end and your tenant does not leave your property; orIf the tenant does not have a written lease, but pays rent monthly and you give them notice that you wish to end the tenancy.When can I not evict my tenant? You cannot evict your tenant:For complaining to the building inspector about your property. That is called retaliatory eviction;Based on not paying rent if the tenant left the premises for a period of time because of domestic violence or the immediate threat of domestic violence; orBased on race, color, ethnicity, sex, disability, religion, discharge from the military, military status, age, marital status, sexual orientation, or source of income. Do I need to give notice before I evict my tenant? Yes. There are different types of eviction notices that the landlord must serve the tenant depending on the circumstances in each case.Five-Day Notice: If your tenant fails to pay the rent on time, you can serve the tenant with a five-day written notice. The notice must state the amount of rent due and advise the tenant that the lease will terminate if the tenant does not pay it within five days. The tenant can pay the rent owed within the next five days and stop you from evicting them. If the tenant pays within the five days you must accept the money. If the tenant does not pay the rent within those five days, you may proceed to evict the tenant. Note that some local laws may require more than a five-day notice for nonpayment of rent. For example, Evanston's Residential Landlord Tenant Ordinace requires 10 days written notice for non-payment. Under the City of Chicago Residential Landlord and Tenant Ordinance, if you accept the rent after the 5 day period you cannot proceed with eviction. Ten-Day Notice: If your tenant violates any terms of the lease, except for payment of rent, you can serve the tenant with a ten-day written notice. The notice must state the terms violated and the dates on which the violation occurred. The tenant does not have a right to fix the violation. But there are some local ordinances, including the City of Chicago Residential Landlord and Tenant Ordinance, which allow the tenant a right to fix the violation within the ten-day notice period.Seven-Day Notice: If the lease is a week-to-week lease, then you can serve a seven-day written notice that says the tenant must move out in seven days.Thirty-Day Notice: If the lease is a month-to-month lease, you can terminate it by serving a 30-day notice to your tenant without giving any reason. The last day of the 30-day notice period must be the last day of the lease period. i.e. you must serve the notice at least 30 days before the rent is due. If you accept rent the next month, you must serve a new 30 day notice. Sixty-Day Notice: If the lease is a year-to-year lease, a landlord must give a 60-day written notice. This notice must be served no earlier than 4 months before the end of the year.You may not be required to give a written notice if your tenant has waived their right to a notice in the lease or the lease sets a fixed time for it to end. However, this is not always true. For example, Chicago and Evanston have their own laws which do not allow a tenant to waive their right to a notice. Go to the "Forms/Letters" section to view forms some of the different notices that you can send to your tenant.How do I calculate the notice period? The notice period begins on the day after the notice is served. If the last day of the notice period falls on a Saturday, Sunday, or holiday, then the notice period ends on the next business day. If you serve your tenant by mail, the notice period starts from the day after the tenant actually received the notice. For example, suppose you mail a five-day notice to the tenant on January 1. The tenant receives the notice on January 4. The five-day notice period starts on January 5 and the tenant must pay the rent amount by January 9.What should the notice say? The notice should:Describe the premises well enough so that it can be identified;If it is a five-day notice, have the amount of rent due and to whom the amount should be paid;If it is a ten-day notice, have the terms of the lease that have been violated;Say that the tenancy will come to an end at the end of the notice period;State the number of days after the service of the notice that the tenancy will come to an end; andBe signed by the landlord.Go to the "Forms/Letters" section to view forms of the three different notices that you can send to your tenant.How do I give my tenant the notice of eviction? You can serve the notice to your tenant in any of the following ways:Serve the notice personally on your tenant;Serve the notice on someone at your tenant's home who is at least 13 years old;Mail the notice to your tenant by certified or registered mail with a return receipt from the tenant; orIf there is no one living at the premises, you can post the notice on the door of the premises.If your tenant refuses to accept the notice, you can tell the tenant what the notice is and leave it on the ground in front of the tenant's house.What should I do after I have served the notice to my tenant? After the tenant is served, you should complete an affidavit of service and sign it in front of a notary public. Have a notary public sign the affidavit of service. You will need a copy of the notice and the affidavit of service when you file your lawsuit.Are there ways my tenant can stop the eviction? If you sent your tenant a five-day notice for not paying rent, the tenant can stop the eviction by paying the full amount of the rent due. If your tenant can pay only part of the rent, you can accept it and still continue to evict your tenant. However, if you agree in writing to allow the tenant to stay when they pay partial rent, then you must let the tenant stay for the period in the Agreement.In some cities, such as Chicago, your tenant can stop an eviction action based on a violation of the lease (a ten-day notice eviction). The tenant can fix the violation within the ten-day notice period. This calling "curing" the lease violation. If they do, you may not evict the tenant. Be sure to check the local laws to see if the tenant can fix the violation, and demand documented proof of what action the tenant took to fix the violation.If you serve a tenant with a 30-day notice to end a month-to-month tenancy and you accept rent the following month, you have renewed the month to month tenancy and must serve a new notice. Landlords should now file an eviction case before the end of a notice period. How do I file a lawsuit against my tenant? You can file a lawsuit to evict a tenant if the tenant:Does not fix the violation in the notice, like pay their rent, andStays on the premises after the notice period expires. You cannot evict a tenant without going to court and getting a court order to do so. Lockouts are illegal and expose you to civil liability. You should go to the Court Clerk's office in your county and obtain an eviction complaint form and a summons form. You can also go to the "Forms/Letters" section to get these forms. Once you have filled out the forms, file them with the Court Clerk's Office. After the forms are filed, take two copies of the complaint and summons to the Sheriff's office which is located in each courthouse. The Sheriff will then serve a copy of the summons and the complaint on the tenant.There is a fee which you have to pay when filing the eviction complaint and a Sheriff's charge depending on the distance the Sheriff has to go to serve your tenant. If you cannot afford to pay the fee and Sheriff's charge, you can file a petition with the court and the judge may waive the filing fees. To learn more about waiving court costs, see the "Related Articles" section.What happens after I file the papers in court? After filing the complaint, summons, and affidavit of service, and giving copies to the Sheriff's office, the next step is to come to court on the date and time that the Court Clerk indicates the case will be heard.On the day of the hearing, you should go up to the clerk who sits next to the judge and tell the clerk which case is yours. Then you should sit down and wait for the case to be called. When the case is called, you should approach the judge. Identify yourself as the landlord and tell the judge your name. The first court date can be the trial, so be prepared to tell the judge your side of the case. Some counties have you come back on another day for the trial. Ask the Court Clerk how your county does it. If you want a jury trial, you will have to come back another day.At the trial, you will have to prove to the judge that:You have a right to the premises;Your tenant has not paid rent, violated terms of the lease, or overstayed the lease period;You served proper notice on the tenant;You filed the complaint; and The summons was properly served on your tenant.Should I take anything with me to court for the trial? When you go to court for the trial you should take the following:A copy of the notice and affidavit of service signed by the notary publicA copy of your complaint and summonsA copy of the leaseAny witnesses to support your caseAny objects, photographs, or other evidence that you want the judge to considerDoes my tenant get a chance to speak in court? Yes. Once you have presented your case to the court, the judge will ask your tenant some questions if they are present in court. If the tenant asks for a continuance, the judge may grant the first request. This means that you have to appear in court again on another date.If your tenant does not show up in court, the hearing will be held and the tenant will most likely be held in default. This means that the tenant will lose. The court will grant the order for eviction (Order for Possession) and may order the tenant to pay you the money that you asked for in the complaint.Does my tenant have to leave immediately after the court orders the eviction? No. After the judge grants an order of eviction, he will probably give your tenant between 7 and 14 days to move out. You cannot do anything to evict the tenant during this time. Only the Sheriff can evict the tenant on a judge's order. What can I do if my tenant does not leave in the time fixed by the court? If your tenant does not leave when the time set by the court is over, you can go to the Sheriff's department with the Order for Possession and ask to have your tenant evicted. Only the Sheriff has the authority to evict the tenant; you as the landlord cannot do it on your own. Lockouts are illegal and may expose you to civil liability. In some counties, the Sheriff will require a deposit in order to place the eviction on their calendar. This deposit is refundable at any time before the Sheriff evicts the tenant. When the Sheriff performs the eviction, your tenant's possessions may be removed and put on the curb and no protection is provided. But some counties, including Cook County, the Sheriff does not take the tenants belongings out of the apartment. This is the landlord's job, but there are rules you have to follow. Check with the Sheriff's office on what you need to do.If you decide to keep the tenant (for example, if the tenant pays the rent due), you must call the Sheriff to cancel the eviction. What if my tenant wins and I lose the case? If your tenant wins at the trial, your complaint will be dismissed and you will not take possession or receive any amount in damages that you may have asked for in the complaint. The judge might also ask you to pay the costs and attorney's fees for the other side, if any. You may also have a right to request the court to reconsider the decision and you have a right to appeal the decision to a higher court. You should try and get help from an attorney if you want to appeal the court's decision.Do I have any options other than a trial? Mediation is an alternative to a trial. It is an informal negotiation. You and your tenant try to reach a settlement with the help of a mediator instead of letting a judge or jury decide. You can ask for mediation before meeting with a judge. Mediation has a few advantages over a trial, including:You have more control over your caseYou and your tenant can agree to a settlement based on what seems fair to you, instead of a judge deciding based on what the law saysYou can keep a mediation agreement secret, unlike a trial where everything is public recordYou can talk about what is important to you, and not just legal issuesIf you and your tenant do not settle your case before trial, the judge can also send you and your tenant to mediation.Give Your Tenant an Eviction Notice Fill out a five, seven, ten, 30 or 60-day notice, depending on your case. You may not be required to give a written notice if your tenant has waived their right to a notice in the lease or the lease sets a fixed time for it to end. Some counties don't let tenants waive this this right, so check what you have to do in your area.You must give your tenant the notice in one of three ways:You can give the notice to the tenant personally; You can give the notice to someone over the age of 13 who lives with the tenant; orYou can mail the notice by certified mail with a return receipt.Remember, if you do not give your tenant proper notice, the case will be thrown out of court.Sign the Affidavit of Service in Front of a Notary Public After the tenant is served, you must fill out the Affidavit of Service and sign it in front of a notary public. When you file your lawsuit in court you will need a copy of the notice with the completed Affidavit of Service and the notary public's signature.Wait until the Notice Period Ends If your tenant does not obey the notice or has not moved out when the notice period ends, you can file a case to evict the tenant in the district court where the rental unit is located. Do not file your case before the notice period is up! If you file early, the tenant can have the court case dismissed. Note that the notice days include weekends and holidays, but it can not end on a weekend or holiday. Prepare Your Forms Make sure you have at least four copies of each completed form including:Eviction ComplaintSummonsFile Your Case in Court Once you have filled out the Eviction Complaint and Summons, file them with the Court Clerk's Office.You will be assigned a court date when you file your forms. You must return to court on this date.Serve the Defendant with the Summons After the forms are filed, take a copy of the Complaint and Summons to the Sheriff's office which is located in each courthouse.The Sheriff will then serve a copy of the Summons and the Complaint on the tenant.If you sue the tenant but did not give them proper notice, they may be able to have the lawsuit dismissed.Go to Your Court Date Take the following to court with you:A copy of the notice and Affidavit of Service signed by the notary publicA copy of your Eviction Complaint and SummonsA copy of your leaseAny witnesses to support your case, andAny objects, photographs, or other evidence that you want the judge to considerGet to court about 15 minutes early. This will give you time to find your courtroom and sign in. Tell the clerk, who sits to the right of the judge, which case you are in court for. Then sit in the courtroom and wait for your case to be called.When your case is called, approach the bench and tell the Judge your name, and that you are the Plaintiff. If the tenant does not show up in court, the tenant will most likely be held in default. This means that you will win the case. In some counties, the trial will be held on the first court date. In other counties, the first court date is only a "first appearance" and the trial will be held on another day. Ask the Court Clerk how your county does it.At the trial, you will first present your case for why the tenant should be evicted. Then, the judge will ask the tenant some questions.If the judge rules for you, the court will grant the order for eviction and may order the tenant to pay you the money that you asked for in the Complaint. Usually, the judge will give the tenant around 14 days to move.If the tenant wins, your Complaint will be dismissed and you will not get any amount in damages that you may have asked for in the Complaint. The judge might also ask you to pay the costs and attorney's fees for the other side.Wait for the Time Set by the Court to Expire The judge will probably give your tenant around 7 to 14 days to move out. You cannot do anything during this time.Get the Sheriff Involved If the tenant does not leave when the time set by the court is over, you can go to the Sheriff's department with the Order of Possession and ask to have your tenant evicted. Remember, only the Sheriff is allowed to physically remove your tenant from the unit - you as the landlord cannot do it on your own! Lockouts are illegal and can expose you to civil liability. When the Sheriff performs the eviction, your tenant's possessions are usually deposited on the curb and no protection is provided. But in some counties, including Cook County, the Sheriff does not take the tenants things out of the apartment. This is the landlord's job, but there are rules you have to follow. Check with the Sheriff's office on what you need to do.
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