Eviction Court Bench Book - Chicago Residential Tenancies

Eviction Court Bench Book - Chicago Residential Tenancies

Last updated: December 2004

Table of Contents

Preface

Applicable laws
State law
Local law
  Scope and application of the RLTO
  Resolving conflicts between the RLTO and state law
Federal law

Prior to filing the eviction action
Is a written termination notice required?
  Notice may not be required when the term of the tenancy is fixed
  Notice may not be required when the tenant has waived her right to written notice
Types of notice
  Requirements of all termination notices
  Notices for nonpayment of rent
  Notices for violating a lease provision
  Notices to terminate week-to-week tenancies
  Notices to terminate month-to-month tenancies
Serving the notice
Demands for immediate possession

Filing the eviction action
Service of summons
  Acceptable methods of serving process
  Contesting the court's personal jurisdiction: defendant was not properly served with summons
    Challenging personal service
    Challenging substitute service
    Challenging constructive service
Venue

Pre-trial procedure
Unrepresented parties are entitled to a short continuance to get an attorney
The defendant in a forcible action need not file an answer unless ordered to do so by the Court
The parties to a forcible action may demand a trial by jury
Discovery
Affirmative defenses and counterclaims

The trial
Establishing a prima facie case
Defending against the eviction action

Germane defenses
Potential defenses to any eviction action
Potential defenses when the plaintiff was required to serve a termination notice
Potential defenses with a termination notice demanding payment of the rent due
Potential defenses with a 10-day termination notice alleging that the defendant violated the lease agreement
Potential defense when the plaintiff served a 7-day or 30-day notice that did not state a reason
Additional defenses that are available to defendants whose lease agreement are governed by the RLTO

Invalid defenses
When the plaintiff was required to serve a termination notice
When the plaintiff served a termination notice demanding the rent due
In cases involving federally-subsidized tenancies

Judgments
Judgments in single actions
Judgments in joint actions
Default judgments
Dismissal for want of prosecution 
Expiration of judgments for possession 

Post-trial and post-judgment motions
Post-trial motions in jury cases
Post-trial motions in non-jury cases
Motions to vacate default judgments
  Within 30 days of the judgment
  More than 30 days after judgment
Vacating a judgment on the grounds that the plaintiff has reinstated the tenancy

Federally-subsidized housing
Public Housing
  Evictions
  Termination notices
  Grievance procedures
Section 8 Housing
  Section 8 tenant-based assistance
    Abating the housing assistance payment when the landlord fails to maintain the premises
    Grounds for eviction
  Section 8 project-based assistance
Other HUD-Subsidized Housing
Emergency eviction proceedings for Section 8  and other HUD-subsidized housing

Cooperatives, condominiums, and mobile home parks
Cooperatives
Condominiums
Mobile home parks

Lock-outs
The Forcible Act's prohibition against lock-outs
The RLTO's prohibition against lock-outs
Granting relief from lock-outs

Distress for rent 

Preface

Just five courtrooms have been set aside for the more than 40,000 eviction actions that are filed in Chicago every year, so the judges who sit in these high-volume courtrooms have an especially difficult task.  While presiding over a tremendous number of cases, they must afford procedural due process to both parties.  The importance of this task cannot be overestimated because the majority of litigants who appear in forcible court do so without benefit of counsel.

This Bench Book is designed to help judges by providing them with an up-to-date summary of laws governing the landlord-tenant relationship, as well as a guide to proper courtroom procedures.  It is also intended to help advocates, who may cite it as an official document in their briefs and motions. The official citation is, Chicago Eviction Court Bench Book, February 2001.

The Bench Book is not exhaustive.  It deals only with well-settled matters of law, and does not address such issues as:

  • The propriety of granting a landlord's motion for use and occupancy;
  • Whether a tenant can cure a criminal lease violation; or
  • The circumstances under which an agreed order may be vacated.

These issues, along with many others, must be resolved without the help of this guide, which is meant to serve as an unbiased review of the relevant law and is not intended to advance the interests of one group (either tenants or landlords) at the expense of the other.

The Bench Book was written by Lawrence Wood of the Legal Assistance Foundation of Metropolitan Chicago (LAFMC).  In drafting this document, he received and incorporated comments from members of both the tenants' bar (including Richard Wheelock and Patricia Bronte), and the landlords' bar (including Richard Christoff and Michael Pardys).  He also consulted the original edition of the Bench Book (published in 1988), and gratefully acknowledges his debt to its authors, William P. Wilen and Sanford Kahn.

 

Applicable Laws

The procedure for evicting residential tenants in Chicago is governed by state, local, and/or federal law.

State law

The most important state statute is the Forcible Entry and Detainer Act, 735 ILCS 5/9 § 01 et seq.  This Act, codified as Article IX of the Illinois Code of Civil Procedure, governs the procedure for evicting tenants and obtaining judgments against them for unpaid rent.  Other important statutes include:

Local law

On September 8, 1986, the Chicago City Council enacted the Residential Landlord and Tenant Ordinance, Chicago Municipal Code, § 5-12-010 et seq. (RLTO), which provides tenants and landlords with significant rights and protections that state law does not afford.

Scope and application of the RLTO

The RLTO governs every dwelling unit in Chicago, subject to the following limitations.  The RLTO does not apply to units in owner-occupied buildings containing less than seven apartments.  RLTO, § 5-12-020.  Nor does it apply to hotels, motels, inns, rooming houses, or boarding houses unless the tenant has resided there for 32 or more days and pays rent on a monthly basis.  Id.  (The RLTO's prohibition against lock-outs, however, does apply to all the units mentioned above).[1]  Id.

Finally, nothing in the RLTO (including the prohibition against lock-outs) applies to hospitals, convents, monasteries, school dormitories, temporary overnight or transitional shelters,[2] dwelling units occupied by an employee of the landlord (assuming the employee's right to occupancy is conditioned upon her being employed in or about the premises), or cooperatives.  Id.  The Forcible Act, as opposed to the RLTO, prohibits lock-outs for these units.  The Forcible Act's prohibition against lock-outs below.

Resolving conflicts between the RLTO and state law

The RLTO supersedes any conflicting provision in the Forcible Act.  See City of Evanston v. Create, Inc., 85 Ill. 2d 101, 111, 421 N.E.2d 196, 199-201 (1981); Reed v. Burns, 238 Ill. App. 3d 148, 153, 606 N.E.2d 152, 155 (1st Dist. 1992).

Federal law

In addition to state and local laws, federal laws and regulations govern the process of evicting tenants from public housing and other federally subsidized housing.  Federally-Subsidized Housing below.

Prior to Filing the Eviction Action

Is a written termination notice required?

In almost all cases, the landlord must serve the tenant with a termination notice before filing a lawsuit to recover possession of the premises.  As set forth below, there are two exceptions to this rule, but the landlord cannot rely on these exceptions if the rental agreement is governed by the RLTO.

Notice may not be required when the term of the tenancy is fixed

The Forcible Act provides that, if the tenant refuses to move when her written rental agreement expires, the landlord may file a lawsuit to recover possession of the premises without first serving a termination notice.  735 ILCS 5/9-213Section 5-12-130(j) of the RLTO, however, conflicts with and supersedes this provision of the Forcible Act.  Therefore, if the RLTO governs the tenant's rental agreement, she must be provided with at least 30 days' written notice if the landlord does not want to renew the lease.

Notice may not be required when the tenant has waived her right to written notice

Form leases commonly contain a provision stating that the tenant has waived her right to a written termination notice, and the Illinois Supreme Court has upheld the validity of such provisions.  Avdich v. Kleinert, 69 Ill.2d 1, 6, 370 N.E.2d 504, 507 (1977); Sandra Frocks, Inc. v. Ziff, 397 Ill. 497, 502, 74 N.E.2d 699, 702 (1947).  Section 5-12-140(d) of the RLTO, however, renders unenforceable any lease provision that purports to waive the tenant's right to written notice.

Types of notice

The kind of notice required depends on the landlord's grounds for terminating or refusing to renew the tenancy.  The notice must comply with all the requirements of the applicable law.  Goldblatt v. Perlman, 338 Ill. App. 654, 88 N.E.2d 377 (1st Dist. 1949).  Some requirements apply to all notices; other requirements apply only to specific kinds of notice.

Requirements of all termination notices

All notices must accurately describe the premises at issue and identify the apartment number, if any. Brite's House Co. v. Cary, 345 Ill. App. 509, 104 N.E.2d 125 (1st Dist. 1952).   The notice must usually also provide that the lease will terminate at some future date.  (But see Demands for immediate possession below.)  For example, a termination notice demanding payment of the rent due must state that the lease will terminate in not less than five days (assuming the rent is not paid during this period).  735 ILCS 5/9-209.  A termination notice alleging some other lease violation must state that the lease will terminate in not less than ten days.  735 ILCS 5/9-210.  The time period set forth in the notice does not start to run until service of the notice has been properly completed.  Avdich v. Kleinert, 69 Ill.2d 1, 9, 370 N.E.2d 504, 508 (1977).

A notice that does not afford the statutorily required number of days is invalid.  Hoefler v. Erickson, 331 Ill. App. 577, 583, 73 N.E.2d 448, 450 (1st Dist. 1947).  The notice is not defective, however, if it provides more time than the statute requires.  Furthermore, the notice need not specify the calendar date on which the tenancy will end as long as the notice provides that the tenancy will terminate the appropriate number of days after the date of service.

Notices for nonpayment of rent

When rent is not paid on the date due, the landlord may serve a notice stating that, unless rent is paid within five days, he will consider the tenancy terminated.  735 ILCS 5/9-209. [3]  The notice must include a "legal demand for a sum certain."  Weinberg v. Warren, 340 Ill. App. 365, 368, 92 N.E.2d 217, 218 (1st Dist. 1950).

Notices for violating a lease provision

The landlord may serve a ten-day notice when the tenant has violated a term or condition of her lease. 735 ILCS 5/9-210.  In addition to the standard notice requirements outlined above, the landlord must include in the notice a description of the alleged breach.  Id.

Section 5-12-130(b) of the RLTO requires the landlord to serve a ten-day notice that specifies the nature of the breach and states that the tenancy will be terminated unless the breach is remedied within ten days (provided that the breach can be remedied).  If the breach is not remedied within the 10-day period, the landlord may consider the tenancy terminated without further notice.

Section 9-120 of the Forcible Act sets forth special procedures for terminating a tenancy when the tenant engages in drug-related criminal activity.  It provides that the landlord may serve a 5-day termination notice prior to filing suit for possession.  (Note, however, that this provision of the Forcible Act may conflict with, and be superseded by, Section 5-12-130(b) of the RLTO.)  See also 740 ILCS 40/11 and 765 ILCS 705/5, mentioned above in State Law.

Section 5-12-130(d) of the RLTO sets forth special procedures for terminating a tenancy when the tenant disturbs her neighbors.  It provides that the landlord may serve a ten-day notice informing the tenant that she has a right to remedy this breach within ten days.  If another disturbance occurs within the next 60 days, however, the landlord may serve a final 10-day notice B with no right to cure B and file a forcible action based upon this second notice.

Notices to terminate week-to-week tenancies

The landlord may terminate a week-to-week tenancy with a written 7-day notice.  735 ILCS 5/9-207.  This notice must be served no later than seven days prior to the end of the weekly rental period.  A landlord who wishes to terminate a week-to-week tenancy need not state any reason for the termination and may accept rent for the final week of the tenancy without waiving his right to proceed on the notice.

Notices to terminate month-to-month tenancies

A month-to-month tenancy may be terminated with a written 30-day notice. 735 ILCS 5/9-207. The notice need not state a reason for the termination, but it must be served no later than 30 days prior to the date of termination.  It must also state that the tenancy will terminate on the last day of the calendar month unless rent is due sometime other than the first of the month. Hoefler v. Erickson, 331 Ill. App. 577, 581, 73 N.E.2d 448, 450-51 (1st Dist. 1947).

To determine whether the notice provides the tenant with the full 30 days, exclude the date of service but include the stated termination date.  Thus, to terminate a month-to-month tenancy at the end of February, in a non-leap year, the landlord must serve the notice on or before January 29.  In months of 30 days, the notice must be served on or before the last day of the preceding month.  See Knapp & Co. v. Johns, 335 Ill. App. 226, 81 N.E.2d 264 (1st Dist. 1948) (abst. only) (notice dated November 1st was invalid because it stated that the tenancy would terminate on November 30th).  In months of 31 days, the notice must be served on or before the first day of the same month.

Serving the notice

The Forcible Act provides that:

Any demand may be made or notice served by delivering a written or printed, or partly written and printed, copy thereof to the tenant, or by leaving the same with some person of the age of 13 years or upwards residing on or in possession of the premises; or by sending a copy of the notice to the tenant by certified or registered mail, with a returned receipt from the addressee; and in case no one is in the actual possession of the premises, then by posting the same on the premises. 735 ILCS 5/9-211.  In Prairie Management Corp. v. Bell, 289 Ill. App. 3d 746, 752, 682 N.E.2d 141, 145 (1st Dist. 1997), the court held that the methods of service identified in this statutory provision are not meant to be exhaustive.  Furthermore, a tenant's acknowledged receipt of the notice cures any defect in the landlord's manner of service.  Id.

Demands for immediate possession

The Forcible Act provides that a tenant may be served with a demand for immediate possession in the following three situations:

  • When a public housing authority is trying to evict the tenant for engaging in drug-related or violent criminal activity.  735 ILCS 5/9-118(b)(3).  (This provision, however, conflicts with the federal regulations governing the public housing program and may therefore be invalid.  See  Evictions below); 
  • When the owner or manager of Section 8 or other HUD-subsidized housing is trying to evict a tenant for refusing, on two separate occasions within a 30-day period, to let the landlord or some other duly authorized person inspect the premises.  735 ILCS 5/9-119(b)(3).  (This provision, however, may conflict with the federal regulations governing the applicable subsidized housing programs, and may therefore be invalid); and
  • When a landlord has voided the lease agreement on the grounds that the tenant has used or permitted the use of the premises for the commission of a felony or Class A misdemeanor.  735 ILCS 5/9-120(d).  (This provision may conflict with, and therefore be superseded by, Section 5-12-130(b) of the RLTO.)
     

Filing the Eviction Action

Eviction actions are brought pursuant to the Forcible Act, and are therefore called forcible actions.  The landlord may file a single action (seeking nothing but possession of the premises) or a joint action (seeking possession plus rent).

Service of summons

After the landlord files his complaint, the sheriff or some other duly authorized person must serve the tenant with a summons to appear in court.  As in civil actions generally, the court acquires personal jurisdiction when the tenant submits herself to the jurisdiction of the court or is served with process in the manner directed by statute.  State Bank of Lake Zurich v. Thill, 113 Ill. 2d 294, 307, 497 N.E.2d 1156, 1161 (1986).

Acceptable methods of serving process

In a forcible action, the defendant may be served in accordance with any of the following methods:

Personal service B "by leaving a copy thereof with the defendant personally" (735 ILCS 5/2-203(a)(1));

Substitute service B "by leaving a copy at the defendant's usual place of abode with some person of the family or a person residing there, of the age of 13 years or upwards, and informing that person of the contents of the summons, provided the officer or other person making service shall also send a copy of the summons in a sealed envelope with postage fully prepaid, addressed to the defendant at his or her usual place of abode" (735 ILCS 5/2-203(a)(2));

Service by special order of court B If service upon the tenant is impractical under either of the two methods set forth above, A[t]he court may order service to be made in any manner consistent with due process.  735 ILCS 5/2-203.1; or

Constructive service -- by posting and mailing of notices (735 ILCS 5/9-107); or by publication and mailing of notices (735 ILCS 5/9-107 and 735 ILCS 5/2-206).  Before using the statutory provisions allowing for constructive service, the plaintiff or his attorney must file an affidavit stating that the defendant

  • does not reside in Illinois, or
  • has left Illinois, or 
  • on due inquiry cannot be found, or 
  • is concealed within Illinois so that process cannot be served upon her.

735 ILCS 5/9-107.[4]

If the tenant is not served in the manner directed by statute, and she does not submit herself to the jurisdiction of the court, any judgment entered against her "is void regardless of whether [she] had actual knowledge of the proceedings."  State Bank of Lake Zurich v. Thill, 113 Ill. 2d 294, 307, 497 N.E.2d 1156, 1161 (1986).

Contesting the court's jurisdiction on the grounds that the defendant was not personally or constructively served.

As in any civil action, the defendant may contest the court's jurisdiction by filing a motion to quash ser

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