Evictions – Frequently Asked Questions
Illinois has judicial evictions. This means that even if a tenant is not paying rent or is violating the lease in some other way, the landlord can’t just throw the tenant out. A judge has to order that the tenants be evicted, and only the county sheriff is allowed by law to evict a tenant or other occupant. It can be a mysterious process to landlords unfamiliar with the courts and the sheriff’s deputies and their respective processes and procedures. This naturally leads to many questions, a few of which we get asked frequently. Here we try to answer some of them for you. We hope you find this information helpful.
How do you evict a tenant?
Most eviction cases arise because the tenant is not paying rent. Some eviction cases come about because the tenant is violating the lease in some way. Still others are necessary because the tenant has stayed in the property after the lease has expired. In almost every eviction case, the first step is to serve a notice on the tenant. This is not just a letter that you write to your tenant. An eviction notice is a legally significant document and is either required by statute or by your lease. You should hire or consult an attorney before serving any type of notice on your tenant if you are not well-versed or experienced in the process. What kind of notice you must serve upon your tenant depends on your situation. If the tenant is not paying rent, then the notice you need to serve (except in some very limited circumstances, or if your property is in Evanston) is a 5-day notice. If your tenant is violating the lease, then the notice you must serve on the tenant is a 10-day notice. If you have a month-to-month tenant and you want to terminate the tenancy, then you must serve a 30-day notice. Each notice has its own specific timing requirements and nuances, so again, unless you are well-versed and experienced in the process, you should hire or consult a lawyer before serving any notice on your tenant. In certain limited circumstances, no notice is required, for example, generally when a lease has expired, you generally do not need to give the tenant any kind of a notice. Also, the jurisdiction (city or other municipality) you are in can affect: (1) whether a notice is necessary; or (2) the timing requirements. For example, although generally a notice is not required for a lease expiration case, in the city of Chicago, such a case must be preceded by a notice of nonrenewal served upon the tenant. Also, a 10-day notice in the city of Chicago is completely different from a 10-day notice outside of the city.
Once a notice has been properly served and if the tenant has not complied with the terms of the notice, then a court case must be filed for possession of the property (and back rent if applicable). This is like any other civil court case, i.e., a summons and complaint must be filed, the tenant must be served with papers, and the court must issue a decision on the case, either after a trial or by some other court procedure (motion, agreed order, etc.). After the court issues its decision, if you have won your case, an Eviction Order must be filed with the county sheriff for final processing (the actual physical eviction of the tenants) and the sheriff completes the eviction after that.
How do I serve an eviction notice?
For almost every eviction, the first and most important step is properly serving the eviction notice. The eviction statute (called the “Eviction Act”) tells us the only proper way to serve an eviction notice. Unless there is no one actually living in the property, there are only three acceptable methods to serve an eviction notice: (1) by personal service, which means that the notice is handed personally to the tenant. This does not include taping the notice to the door, leaving the notice in the mailbox or sliding the notice under the tenant’s door, all of which are unacceptable; (2) substitute or abode service, which means that the notice is handed personally to someone who is a member of the tenant’s household who is 13 years old or older; and (3) by certified mail, return receipt requested. While certified mail may seem like an attractive option, it requires an actual return of what we call the “green card” (the return receipt for the certified mail), and it must be signed by the tenant himself or herself, not just by someone receiving the mail. Since it is always possible for the tenant or the tenant’s family to avoid the mailman, or even just to refuse to sign for a certified mail piece, it is not usually the best way to serve a notice; (4) the last method to serve an eviction notice is only allowed when no one is actually living in the property, and it is service by posting. This method involves either taping or in some other way affixing the notice to the property, usually the front door. This seems like an easy out, a simple way to serve the notice without needing the tenant’s (or someone else’s) presence. But it must be stressed that this method is allowed only when someone is not actually living in the property. It does not mean that it is allowed when the tenant is not home, out at work or on vacation. While the law on serving eviction notices is still somewhat fluid since our State Supreme Court has not yet issued a decision on it, the prevailing way the trial courts apply the law based upon recent appellate court decisions is strict. This means if you do not follow the service rules about serving eviction notices to the letter, you run the very real risk that your case will be dismissed, and you will have to start all over again because you did not complete the first step in the process correctly.
How long does it take to evict a tenant?
Every case is different, so there is no “set” time that an eviction case takes. Conservatively speaking, an eviction will take a minimum of 90 to 120 days to complete, but this can vary depending upon different factors, including:
– If the tenant hires a lawyer.
There are very few true defenses to an eviction, especially one for nonpayment of rent, so a tenants’ lawyer’s main goal in these cases is to buy time in your property for the tenant. Tenants’ lawyers will do everything in their power to delay the case or put up legal roadblocks, and the experienced tenants’ lawyers are very good at doing this.
– If the Sheriff or a private process server cannot serve the tenant with the complaint and summons.
The tenant has to be served, or the court has to have jurisdiction over the property at least to enter an eviction order. This can take time and requires sometimes multiple steps to put you into the position to obtain an eviction order from the court.
Can I evict someone during the winter?
Yes, you can evict a tenant or other occupants during the winter. The courthouse is never closed to evictions. The weather can, however, impact the enforcement of the Eviction Order by the Sheriff. For example, in Cook County, every winter, by order of court, the Sheriff is directed not to evict anyone when the temperature (including wind-chill factors) is 15° F or colder, or if the weather is otherwise inclement. In other words, when it is 15° F or colder, for sure there will be no evictions, but evictions can also be cancelled if the temperature is 25° F, for example, but there are blizzard conditions outside.
If the sheriff won’t do evictions in bad weather during the winter, isn’t it smarter to wait until spring?
No, it is not smarter to wait. The weather does not impact the court process at all, and you can obtain an Eviction Order from a judge regardless of what it’s like outside. Whether or not the Sheriff has cancelled evictions due to the weather, you can still file your Eviction Order with the Sheriff. For landlord/tenant matters, the Sheriff generally processes evictions in the order they are filed, so even though there may be some delays in the winter, you will be in a far better position and lose far less time and money than if you wait until spring time. Remember, your tenant isn’t paying the rent or is violating their tenancy in some way, so the longer you wait to take action, the more time and money you will lose.
Is there such a thing as an expedited eviction?
No. Although the Illinois courts treat evictions as expedited proceedings, it is still a process and no one eviction takes priority over any other eviction (unless it is an eviction done by the city or other municipality because of dangerous living conditions at the property). So, there is no way to speed up the process so that your eviction can be done more quickly than anyone else’s. A conservative estimate for the length of the eviction process is 90-120 days, but it can be longer depending on a number factors, for example the difficulty in serving the tenant with court papers, if the tenant “lawyers up”, the weather, and so on. And every case is different, so what happened in one case, or in your friend’s case, or in your neighbor’s case, has no impact or relevance in your case.
Can I shut off my tenant’s utilities if my tenant is not paying rent or is violating the lease in some other way?
Absolutely not. A landlord may never under any circumstances take steps to cut off the tenant’s utilities. If you do, there can be stiff penalties, particularly in the City of Chicago. You can be sued by your tenant, and you may be made to pay not only monetary penalties, but also your tenant’s attorney’s fees.
If my tenant’s lease has expired, can I change the locks and move all of their belongings out of my property?
The answer is no. Only a court order enforced by the County Sheriff can legally restore you to possession of your property, even if it may not seem to be logical to you. Illinois has judicial evictions, so that means that even if a tenant hasn’t left your property when he/she should have, you cannot just throw the tenant out and change the locks. That is called “self-help”, and it is against the law. Even when the lease has expired, a judge has to order that the tenants be evicted, and only the county sheriff is allowed by law to perform the eviction.
If I file an eviction against my tenant, can I make my tenant pay my legal costs?
Maybe. If your rental property is in the city of Chicago, then by ordinance you cannot make your tenant pay your attorney’s fees (unless the property is owner-occupied and has six or fewer rental units, and then only in limited situations). Outside of Chicago, whether or not the tenant can be made to pay attorney’s fees depends upon whether you have a written lease, and if that written lease has a “fee-shifting” provision (a clause that says that in case of legal action, the tenant is liable for your attorney’s fees). If you don’t have a written lease, or if your lease doesn’t have a “fee-shifting” provision, then you cannot hold your tenant liable for your attorney’s fees. The court costs (the money you pay to file your case, etc.) are almost always recoverable, even if there is no written lease, and even in Chicago. Also, “fee-shifting” doesn’t mean that your lawyer waits for your tenant to pay; you have to pay your lawyer first and then your attorney’s fees become part of the judgment against your tenant if they are recoverable. Getting the money to pay the judgment is an entirely separate matter (and dealt with in these FAQs under “How can I get my money from my tenant after I have a judgment against him/her?”
If I hire an attorney to help me with my eviction, do I have to come to court, or can the attorney handle everything for me?
The answer is maybe. Your attorney will handle the whole process of filing your case and seeing it through from start to finish, but it is always possible that you might need to attend court. Remember, your case is just that: your case, and while your lawyer is experienced at handling the court processes and the trial work, he or she cannot testify because your lawyer does not have any personal knowledge about the facts of the case. Almost 100 percent of the time, your lawyer only knows the facts of the case because you — and others — have told him/her what happened. That is not knowledge that allows for testimony in court (we call it “hearsay” in the legal world). Plus, attorneys are prohibited by law from testifying as a witness in cases that they are handling. Your attorney will try to resolve the case without the need for your presence, and in most cases you won’t need to come to court, but you have to remember that it always remains a possibility.
How can I get or collect my money from my tenant after I have a judgment against him/her?
Once your case has been decided by the court and you win, you will have a judgment. If you sued for both possession and back rent, then your judgment will include both possession of your property and rent damages, or money your tenant owes you for rents. But a judgment is simply a piece of paper — in this case a court order — that says your tenant owes you a certain amount of money. A judgment does not self-enforce, and you can’t make the tenant pay, even with a judgment, unless you take the proper steps to enforce the judgment in court. This involves a separate proceeding filed after the judgment called an “enforcement proceeding.” Usually enforcement proceedings involve either a wage garnishment if your tenant is working, or bringing the tenant back into court to testify about his or her assets so that you can discover the possibilities and probabilities that the tenant can satisfy, or pay, the judgment. An enforcement proceeding is a new filing within the same case that has separate fees and costs in addition to those associated with the eviction case. If your case was about nonpayment of rent, usually tenants don’t pay rent because they just don’t have the money. Anyone’s ability to satisfy or pay a judgment is directly related to whether or not they have the money available to do so.
I’ve heard that a judge can award rent to me up to the time my tenant is supposed to move out. What if I have to have the sheriff evict my tenant and that takes a long time after the date the judge ordered the tenant to move? Does the tenant have to pay me for that time?
It is true that the court is limited by the eviction statute to awarding past due rents only up until the date the tenant is ordered to move by (this is commonly called the “stay” date). Most of the time, unless the tenant moves out voluntarily by the “stay” date, there will be a significant period of time your tenant remains in your property before the sheriff evicts the tenant. Unfortunately, there is no mechanism within the eviction statute to award money for that time. It may be possible to sue your tenant after the eviction for what’s called “use and occupancy” under the eviction statute, but that would be a new and separately filed case.
Do I have the right to enter my property and inspect my property while the tenant is living there?
Yes, you always have the right to enter and inspect your property even while the tenant is living there; however, (except in cases of emergencies) you have to strictly comply with any notice requirements under the law or under your lease, and your right of entry cannot be abused; you have to be reasonable in the frequency, time and purpose of your entries. Generally, entry and inspection is limited to the purposes of making repairs, and determining whether (or not) the tenant is complying with the terms of the lease. In the city of Chicago, you have to give your tenant 48 hours’ written notice of your entry, and you cannot enter before 8 a.m. or after 8 p.m., and you cannot enter at any time on Sundays or holidays (unless in case of emergencies, in which case notice of the fact of entry must be given after the entry). But again, the right of entry must never be abused by you. Explained in the simplest way possible, the relationship between a landlord and a tenant is this: the tenant pays rent and the landlord gives possession. Possession means exclusive possession, including exclusion of you, even though you are the owner. So, while you do have the right to enter and inspect, you must always honor the tenant’s right to exclusive possession and keep this foremost in your mind when determining whether you are being reasonable in exercising that right.
If my tenant, or any other occupants in the property, are sick, old or disabled, can I still evict them?
Yes. Sickness, age or disability are not available defenses to a proper eviction. This may, however, delay enforcement by the Sheriff. In Cook County, such cases may be referred to the Sheriff’s Social Services Department. If that happens, the eviction will be delayed while the Sheriff processes the tenant through social services. The delay can add 2 weeks or more to the eviction.
My tenant told me I can’t evict him because he has small children or minor children. Is that true?
No. Just as sickness, age or disability are not defenses to a proper eviction, neither is having children. In some cases, a particular judge may allow the tenants more time to move in the case of minor children, but this usually is not a significant delay.