EVICTION COURT BENCH BOOK (RESIDENTIAL TENANCIES) CHICAGO
HAC draft 8-1-05
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 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.
*The official citation is CHICAGO EVICTION COURT BENCH BOOK, February 2001.
I.
APPLICABLE LAWS The procedure for evicting residential tenants in Chicago is governed by state, local,
and/or federal law. A.
State law
The most important state statute is the FORCIBLE ENTRY AND DETAINER ACT, 735 ILCS 5/9-101 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: •
RENTAL PROPERTY UTILITY SERVICE ACT, 765 ILCS 735 (authorizing tenants to pay for utility service the landlord has failed to provide and to deduct the cost of such service from the rent);
•
RETALIATORY EVICTION ACT, 765 ILCS 720/1 (prohibiting retaliatory evictions);
•
ILLINOIS HUMAN RIGHTS ACT, 775 ILCS 5/1-101 et seq. (prohibiting unlawful discrimination in rental housing);
•
CONDOMINIUM PROPERTY ACT, 765 ILCS 605;
•
MOBILE HOME LANDLORD AND TENANT RIGHTS ACT, 765 ILCS 745;
•
CONTROLLED SUBSTANCE AND CANNABIS NUISANCE ACT, 740 ILCS 40/11 (authorizing expedited eviction procedures where controlled substances are found in the leased premises);
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•
LANDLORD AND TENANT ACT, 765 ILCS 705/5 (authorizing expedited eviction procedures when any lessee or occupant is charged during the lease term with committing a class x felony on the premises);
B.
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. 1.
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.
1
The Ordinance's prohibition against lock-outs is discussed below in Section XII(B).
2
A “transitional shelter” is one that does not charge rent and does not allow residents to stay for more than 120 consecutive days. Chicago Municipal Code, Chapter 13-212. Παγε 2 οφ 53
Id. The Forcible Act, as opposed to the RLTO, prohibits lock-outs for these units. See Section XII(A) below.
2.
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). C.
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. See Section X below.
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II.
PRIOR TO FILING THE EVICTION ACTION A.
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. 1.
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 5/9-213. Section 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. 2.
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 5-12140(d) of the RLTO, however, renders unenforceable any lease provision that purports to waive the tenant's right to written notice.
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B.
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. 1.
Requirements of all termination notices
All notices must accurately describe the premises at issue and identify the apartment number, if any. Brite-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 Section II(D) 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. 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 period does not begin to run until the day after the notice is served. See 5 ILCS 70/1.11. Furthermore, the landlord cannot file his eviction action until the day after the notice period ends. Finally, if the last day of the notice period falls on a Saturday, Sunday, or holiday, the notice period is extended through the next business day, and the landlord cannot file his eviction action until after that business day ends. Id.
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A notice is not defective 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. The notice must be addressed to the tenant and signed by the person claiming possession of the premises, his agent, or his attorney. 735 ILCS 5/9-104. 2.
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). The notice may not include a demand for anything other than rent. 3.
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
3
There is one exception to this rule. A public housing resident must be given 14 days to pay the rent owed. 24 C.F.R. § 966.4(l)(3)(i)(A). See Section X(A)(2) below.
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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 Section I(A). 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, the landlord may serve a final 10-day notice – with no right to cure – and file a forcible action based upon this second notice. 4.
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. 5.
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 Παγε 7 οφ 53
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). A landlord may take rent for the final month prior to the termination date of the termination notice without waiving their right to proceed under the termination notice. 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. C.
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 Παγε 8 οφ 53
statutory provision are not meant to be exhaustive. Furthermore, a tenant's acknowledged receipt of the notice cures the landlord's failure to serve its notice in accordance with the methods set forth in the Forcible Act. 735 ILCS 5/9-211. The rule that a tenant’s receipt of the notice cures a defect in the manner of service applies only to the landlord’s failure to serve its notice in accordance with the methods set forth in the Forcible Act. It does not necessarily apply to a landlord’s failure to comply with the methods of service set forth in any other statute or regulation. D.
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 Section X(A)(1) 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 Παγε 9 οφ 53
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.)
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III.
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). A.
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). 1.
Acceptable methods of serving process
In a forcible action, the defendant may be served in accordance with any of the following methods: Personal service – "by leaving a copy thereof with the defendant personally" (735 ILCS 5/2-203(a)(1)); Substitute service – "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 – If service upon the tenant is impractical under either of the two methods set forth above, “[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
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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). 2.
Serving unknown occupants.
4
The Forcible Act provides, in pertinent part, that: in cases where the defendant is notified by posting and mailing of notices or by publication and mailing, and the defendant does not appear generally, the court may rule only on the portion of the complaint which seeks judgment for possession, and the court shall not enter judgment as to any rent claim joined in the complaint . . . .
735 ILCS 5/9-107. Therefore, a landlord who uses constructive service may not obtain a money judgment against a tenant unless that tenant has submitted herself to the jurisdiction of the court.
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Unknown occupants may be served “by delivering a copy of the summons and complaint naming ‘unknown occupants’ to the tenant or any unknown occupant or person of the age of 13 or upwards occupying the premises.” 735 ILCS 5/9-105(a). Assume a plaintiff does not name unknown occupants in his summons and complaint, and subsequently obtains a judgment for possession that does state that it may be enforced against unknown occupants. If the sheriff then determines that unknown occupants reside in the subject premises, the sheriff must leave a copy of the order for possession with someone who lives in the premises and is at least 13-years-old. If no one is present to accept the order, the sheriff must post a copy on the premises. He must also leave or post a notice addressed to “unknown occupants,” and this notice must inform the unknown occupants that they may be evicted unless they file within the next seven days a petition setting forth their right to possession of the premises. If the unknown occupants file such a petition, a hearing on the petition must be held within the next seven days. 735 ILCS 5/9-107.5(b). 3.
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 service by summons, posting or publication. See 735 ILCS 5/2-301. The defendant does not, however, have to file a special and limited appearance along with this motion. Public Act 91-145, which went into effect on January 1, 2000, replaced the special appearance procedure with a simpler and more flexible procedure for objecting to the court’s personal jurisdiction, and eliminated the distinction between special and general appearances. a.
Challenging personal service Παγε 13 οφ 53
The return of service must state: •
the sex, race and approximate age of the person served;
•
where the person was served; and
•
the date and time of day the person was served.
735 ILCS 5/2-203(b). The contents of the return are presumed correct and "should not be set aside merely upon the uncorroborated testimony of the person on whom the process has been served but only upon clear and satisfactory evidence." Marnik v. Cusack, 317 Ill. 362, 364, 148 N.E. 42, 43 (1925). As the appellate court stated in Paul v. Ware, 258 Ill. App. 3d 614, 617-618, 630 N.E.2d 955, 958 (1st Dist. 1994): [T]he affidavit of service is prima facie evidence that process was properly served. To attack the underlying default judgment on the grounds that the court never obtained personal jurisdiction over the defendant, evidence must be presented to impeach the affidavit of service. An uncorroborated defendant's affidavit merely stating that he had not been served with summons is insufficient to overcome the presumption favoring the affidavit of service. The default judgment will not be set aside unless the return of service is impeached by clear and convincing evidence. b.
Challenging substitute service
In State Bank of Lake Zurich v. Thill, 113 Ill. 2d 294, 309, 497 N.E.2d 1156, 1162 (1986), the court stated: [T]he return of the officer or other authorized person making service of a summons on a defendant by delivering a copy to another person, that is, by substituted service, must show strict compliance with every requirement of the statute authorizing such substituted Παγε 14 οφ 53
service, since the presumption of validity that attaches to a return reciting personal service does not apply to substituted service. When the return of service is "`challenged by affidavit and there are no counteraffidavits, the return itself is not even evidence, and absent testimony by the deputy, the affidavits must be taken as true and the purported service of summons quashed.'" Clinton Co. v. Eggleston, 78 Ill. App. 3d 552, 557, 397 N.E.2d 183, 187 (1st Dist. 1979). c.
Challenging constructive service
If the plaintiff in a forcible action cannot obtain personal service on the defendant, and the return of service on the summons states that service cannot be obtained, the plaintiff may "file an affidavit stating that the defendant is not a resident of this State, or has departed from this State, or on due inquiry cannot be found, or is concealed within this State so that process cannot be served upon him or her . . . . " 735 ILCS 5/9-107. After this affidavit has been filed, the defendant may be served by "posting and mailing" or "publication and mailing" of the notices. Id. If the defendant contests the factual basis for posting or publication and files an affidavit to that effect, she is entitled to an evidentiary hearing upon the factual basis of the plaintiff’s affidavit. Bank of Ravenswood v. King, 70 Ill. App. 3d 908, 911-12, 388 N.E.2d 998, 1001 (1st Dist. 1979). B.
Venue
The Forcible Act provides that venue lies "in the circuit court for the county where [the subject] premises are situated." 735 ILCS 5/9-106. “Civil Actions n the Municipal Department are filed in: ... The district in which the transaction or some part thereof occurred out of which
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the cause of action arose. Actions of ... forcible entry and detainer, ... may be filed in the district where the property is located.” General Order 1.2.3(d)(2) of the Circuit Court of Cook County. If the case is filed in the wrong court, the defendant may file a motion to have the action transferred to the proper court. 735 ILCS 5/2-104. This motion must be supported by affidavit. An objection to venue is waived unless it is made on or before the first appearance date. A lease provision that permits the landlord to sue in any circuit court in Illinois is unenforceable. Martin-Trigona v. Roderick, 29 Ill. App. 3d 553, 555, 331 N.E.2d 100, 101 (1st Dist. 1975).
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IV.
PRE-TRIAL PROCEDURE A.
Unrepresented parties are entitled to a short continuance to get an attorney.
If either party comes to court on the appearance date without benefit of counsel and requests a short continuance for the purpose of getting an attorney, the judge should grant the request and continue the case for a short period (usually no more than one week). B.
The defendant in a forcible action need not file an answer unless ordered to do so by the Court.
Illinois Supreme Court Rule 181(b)(2) provides that: In actions for forcible detainer, the defendant must appear at the time and place specified in the summons. If the defendant appears, [s]he need not file an answer unless ordered by the court; and when no answer is ordered, the allegations of the complaint will be deemed denied, and any defense may be proved as if it were specifically pleaded. C.
The parties to a forcible action may demand a trial by jury
735 ILCS 5/9-108 provides that when a landlord files a forcible action for possession of residential property, either party may demand a trial by jury. Any lease provision purporting to waive this right is unenforceable. Id. A timely jury demand must be filed "not later than the filing of [the] answer." 735 ILCS 5/2-1105. Since no answer is required in a forcible action, the jury demand should be filed on or before the first appearance date. First Bank of Oak Park v. Carswell, 111 Ill. App. 3d 71, 73, 443 N.E.2d 755, 757 (1st Dist. 1982). However, in Pecoraro v. Kesner, 217 Ill. App. 3d 1039, 1045, 578 N.E.2d 53, 56 (1st Dist. 1991) the appellate court reversed the trial court's decision to strike jury demand filed eleven days after tenant was first Παγε 17 οφ 53
required to appear in forcible action, and stating that statutes regulating the right to a jury trial should be liberally construed in favor of allowing this right). D.
Discovery
Supreme Court Rules 201-219 govern the procedures for conducting discovery in forcible actions. The rules permit discovery in forcible actions as of right, similar to other civil actions. Because an eviction case is a statutory civil proceeding in derogation of the common law, it is not a "small claim" as that term is defined in S. Ct. Rule 281. Accordingly, the "leave of court" limitation set forth in S. Ct. Rule 287, which applies to small claims, does not apply to eviction actions. E.
Affirmative defenses and counterclaims
The Forcible Act provides that "[n]o matters not germane to the distinctive purpose of the proceeding shall be introduced by joinder, counterclaim or otherwise." 735 ILCS 5/9-106. This language limits the types of affirmative defenses or counterclaims a tenant may file. Nevertheless, many affirmative defenses and counterclaims are still germane, and they generally fall into one of the following four categories: •
claims asserting a paramount right of possession;
•
claims denying the breach of the agreement vesting possession in the plaintiff;
•
claims questioning the validity or enforceability of the document upon which the plaintiff’s right to possession is based; or
•
claims questioning a plaintiff’s motivation for bringing the forcible action.
See American National Bank v. Powell, 293 Ill. App. 3d 1033, 1044, 691 N.E.2d 1162, 1170 (1st Dist. 1997). Παγε 18 οφ 53
V.
THE TRIAL The plaintiff in an eviction action bears the burden of proving his right to possession of
the premises. Eckel v. MacNeal, 256 Ill. App. 3d 292, 298, 628 N.E.2d 741, 745 (1st Dist. 1993). And while eviction actions are summary proceedings, "an eviction trial, like any other trial, should be an orderly procedure wherein the plaintiff presents evidence of possession and compliance with the necessary procedural steps for notice of termination, filing suit and summons." Id. Furthermore, when the defendant contests the plaintiff’s right to possession and/or rent, the court must swear in the witnesses and elicit their testimony. See id. As in all other civil actions, the plaintiff must first establish a prima facie case. A.
Establishing a prima facie case
The plaintiff must establish that: •
He has a right to possession of the premises. (In other words, the person appearing before the court as the plaintiff must establish that he is either the owner of the premises or the owner’s attorney.)
•
The defendant has possession of the premises.
•
The defendant violated an applicable law or breached the agreement that entitles her to occupy the premises, or is holding over after this agreement expired or was terminated, or is a trespasser.
•
The plaintiff served the defendant with a valid written termination notice (assuming such notice was required).
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•
If the plaintiff has filed a joint action (seeking both possession and unpaid rent), the plaintiff must also establish the amount of rent the defendant owes in order to obtain a monetary judgment.
If the plaintiff cannot establish each of these elements by a preponderance of the evidence, the defendant is entitled to judgment as a matter of law. See Kokinis v. Kotrich, 81 Ill. 2d 151, 156, 407 N.E.2d 43, 45 (1980). B.
Defending against the eviction action
If the plaintiff establishes all the elements of his prima facie case, the defendant may present any germane defenses, even if she never raised them in a proper pleading, unless the Court ordered her to answer or otherwise plead before trial and she failed to comply with this order. See 735 ILCS 5/9-106; Supreme Court Rule 181(b)(2); Samek v. Newman, 164 Ill. App. 3d 967, 969, 518 N.E.2d 422, 424 (1st Dist. 1987).
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VI.
GERMANE DEFENSES The following list sets forth some of the more common defenses. A.
Potential defenses to any eviction action: 1.
The plaintiff is not a proper party or lacks capacity to sue;
2.
The defendant has a claim arising under the Retaliatory Eviction Act; or
3.
The plaintiff is discriminating against the defendant on an unlawful basis.
4.
After the lease agreement expired or was terminated, the plaintiff recognized the existence of the defendant’s tenancy (e.g., by accepting rent that accrued after the date of expiration or termination). See Midland Mgmt. Co. v. Helgason, 158 Ill.2d 98, 102, 630 N.E.2d 836, 839 (1994).
B.
Potential defenses when the plaintiff was required to serve a termination notice: 1.
The notice was not served in accordance with applicable law. (The defendant’s receipt of the notice, however, cures the plaintiff’s failure to serve its notice in accordance with the methods set forth in the Forcible Act);
2.
The notice does not afford the defendant the statutorily required number of days; or
3.
The plaintiff filed the eviction action before the statutorily required notice
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period ended.5 See Avdich v. Kleinert, 69 Ill.2d 1, 9, 370 N.E.2d 504, 508 (1977). C.
Potential defenses when the plaintiff served a termination notice demanding payment of the rent due: 1.
The defendant owed no rent;
2.
The defendant paid the plaintiff all the rent due before the termination notice expired;
3.
The defendant tendered to the plaintiff all the rent due before the termination notice expired, but the landlord refused to accept it. See Madison v. Rosser, 3 Ill. App. 3d 851, 852, 279 N.E.2d 375, 376 (1st Dist. 1972);
4.
The plaintiff's failure to maintain the premises in substantial compliance with applicable municipal building codes reduced its value by an amount
5
Assume the landlord serves his tenant with a 5-day notice demanding the rent due. The 5-day period does not begin to run until the day after the notice was served. See 5 ILCS 70/1.11. Furthermore, because the tenant must be provided with a full five days to pay the rent due, the landlord cannot file his eviction action until the day after the 5-day period ends. Finally, if the last day of the 5-day period falls on a Saturday, Sunday, or holiday, the tenant has another full business day to pay the rent owed, and the landlord cannot file his eviction action until after that day ends. Id.
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that exceeds the rent demanded in the notice. See Jack Spring, Inc. v. Little, et. al., 50 Ill. 2d 351, 280 N.E.2d 208 (1972); or 5.
The rent demanded represents an amount the defendant withheld in compliance with the Rental Property Utility Services Act.
D.
Potential defenses when the plaintiff served a 10-day termination notice alleging that the defendant violated the lease agreement: 1
The defendant never committed the alleged violation;
2.
The defendant's conduct does not constitute a material lease violation. First National Bank v. Chrysler Realty Corp., 168 Ill. App. 3d 784, 794, 522 N.E.2d 1298, 1304 (1st Dist. 1988) (holding that “if defendant’s breach was not material, then plaintiff would have had no right to rescind the lease, and defendants would have the better right to possession”); or
3.
The plaintiff waived his right to pursue an eviction action based upon the lease violation by accepting rent that accrued after the plaintiff learned about this violation. See Midland Mgmt. Co. v. Helgason, 158 Ill.2d 98, 102, 630 N.E.2d 836, 839 (1994).
E.
Potential defense when the plaintiff served a 7-day or 30-day notice that did not state a reason for terminating the tenancy: The defendant has a lease agreement which remains in effect and cannot be terminated without cause. Gill v. Gill, 161 Ill. App. 221 (4th Dist. 1911).
F.
Additional defenses that are available to defendants whose lease agreements are governed by the RLTO Παγε 23 οφ 53
1.
In any eviction action, the defendant may be able to show that the plaintiff has violated the RLTO's prohibition against retaliation.6
6
The RLTO expands upon the Retaliatory Eviction Act by broadening the definition of protected activity, and prohibiting not just retaliatory evictions but other forms of retaliatory conduct as well. Section 5-12-150 of the RLTO prohibits a landlord from terminating or threatening to terminate the lease agreement, increasing the rent, refusing to provide a necessary service, or refusing to renew the lease merely because the tenant has, in good faith: • Complained to a government agency or community organization about the condition of her apartment; • Asked the landlord to make necessary repairs; • Joined a tenants' organization; or • Exercised any right or remedy under law. If the landlord violates the prohibition against retaliatory conduct, the tenant may assert this violation as a defense to the forcible action. Id. Furthermore, evidence that the tenant engaged in protected activity within one year prior to the alleged act of retaliation shall create a rebuttable presumption that the landlord's conduct was indeed retaliatory. Id. The landlord may, however, rebut this presumption by establishing that the tenant violated her lease agreement or an applicable law.
Παγε 24 οφ 53
2.
If the plaintiff served a termination notice demanding the rent due, the defendant may be able to show that, after passage of the time period set forth in the notice, the defendant paid the plaintiff all the rent owed.7
3.
If the plaintiff served a 10-day notice stating that the defendant violated the lease agreement, the defendant may be able to show that: •
she cured the violation (provided it could be cured) within 10 days of receiving the notice; or
•
the notice did not inform her of her right to cure the lease violation. RLTO, § 5-12-130(b).
7
See RLTO, § 5-12-130(g). This provision conflicts with and supersedes the last paragraph contained in § 9-209 of the Forcible Act.
Παγε 25 οφ 53
VII.
INVALID DEFENSES The following list sets forth some defenses that are not valid. A.
When the plaintiff was required to serve a termination notice: 1.
It is not a defense to argue that the notice, while directed to several tenants living in the same apartment, was served to only one of the tenants. Bell v. Bruhn, 30 Ill. App. 300 (1888);
2.
It is not a defense to argue that, although the tenant received the notice, it was not served in accordance with one of the methods set forth in the Forcible Act. Prairie Management Corp. v. Bell, 289 Ill. App. 3d 746, 752, 682 N.E.2d 141, 145 (1st Dist. 1997);
3.
It is not a defense to argue that the tenant did not receive a notice sent by certified mail if the plaintiff can establish that the tenant refused to pick up her certified mail because she was trying to avoid service. Helland v. Larson, 138 Ill. App. 3d 1, 485 N.E.2d 457 (3d Dist. 1985).
B.
When the plaintiff served a termination notice demanding the rent due: 1.
It is not a defense to argue that the notice demanded more rent than was actually due, where the tenant did not tender the actual rent due, if the notice did not mislead and thereby prejudice the tenant. Elizondo v. Medina, 100 Ill. App. 3d 718, 427 N.E.2d 381 (1st Dist. 1981);
2.
It is not a defense to argue that, before the notice expired, the plaintiff accepted partial payment of the total amount of rent that was due and owing (provided that the notice informed the tenant that nothing but full Παγε 26 οφ 53
payment of the rent due would waive the plaintiff’s right to terminate the lease agreement). 735 ILCS 5/9-209. 3.
It is not a defense to argue that the tenant’s security deposit is equal to or more than the amount of rent that was due and owing. Elizondo v. Perez, 42 Ill. App. 2d 313, 356 N.E.2d 112 (1st Dist. 1976).
4.
It is not a defense to argue that the landlord accepted the past due rent after filing the suit for possession. 735 ILCS 5/9-209; but see RLTO, § 5-12-130(g) (providing that a landlord waives his right to pursue a forcible action if he accepts all the rent due).8
5.
It is not a defense to argue that the termination notice demanded utility charges if the lease agreement defines utility charges as rent. Chicago Housing Authority v. Bild, 346 Ill. App. 272, 104 N.E.2d 666 (1st Dist. 1952).
C.
In cases involving federally-subsidized tenancies: 1.
It is not a defense to argue that, after learning the defendant violated the lease agreement, the plaintiff accepted federal housing assistance payments from the HUD on the defendant’s behalf. Midland Mgmt. Co. v. Helgason, 158 Ill.2d 98, 106, 630 N.E.2d 836, 840-41 (1994).
8
This provision of the RLTO conflicts with and supersedes the last paragraph of § 9-209 of the Forcible Act.
Παγε 27 οφ 53
2.
It is not a defense to argue that, after the defendant violated the lease agreement, the plaintiff recalculated the defendant’s share of the rent. Burnham Mgmt. Co. v. Davis, 302 Ill. App. 3d 263, 704 N.E.2d 974 (2d Dist. 1998).
Παγε 28 οφ 53
VIII. JUDGMENTS A.
Judgments in single actions
If the plaintiff prevails at trial, he is entitled to a judgment awarding him possession of the premises plus costs. (The landlord may recover his attorneys' fees only if the lease or a statute provides for such recovery and the collection of fees is not prohibited by any other statute or ordinance.9) The court may stay enforcement of this judgment for any period of time that the court and/or the parties deem reasonable and appropriate. If the defendant prevails at trial, she is entitled to a judgment awarding her possession of the premises plus costs. B.
Judgments in joint actions
When a plaintiff who has filed a joint action (seeking possession plus rent) prevails at trial, he is entitled to a judgment against the defendant for possession and an amount equal to the rent owed plus court costs. The plaintiff may collect any money the court awards him and still enforce the judgment for possession. With the court's approval, he may also accept whatever rent accrues between the entry of the judgment and the expiration of the stay without waiving his right to enforce the judgment. The landlord may not, however, accept rent that accrues after the stay expires without waiving his right to enforce the judgment for possession.
9
See Section 5-12-140(f) of the RLTO, which renders unenforceable any lease provision requiring the tenant to pay these fees.
Παγε 29 οφ 53
C.
Default judgments
If only the plaintiff (or his attorney) appears at the trial, the court should examine the return of service on the summons to determine whether it [the court] has jurisdiction over the defendant. See Section III(A) above. If the court has jurisdiction, it must determine whether the plaintiff was required to serve the defendant with a termination notice. If so, the court must ensure that the plaintiff served the defendant with a valid notice and did not file the complaint until after passage of the time period set forth in this notice. See Avdich v. Kleinert, 69 Ill.2d 1, 9, 370 N.E.2d 504, 508 (1977). Only after completing these steps should the court enter a default judgment against the defendant. D.
Dismissal for want of prosecution
If only the defendant or her attorney appears at the trial, the court should dismiss the case for want of prosecution. E.
Expiration of judgments for possession
The Forcible Act provides that no judgment for possession may be enforced more than 90 days after the judgment is entered "unless upon motion by the plaintiff the court grants an extension of the period of enforcement of the judgment." 735 ILCS 5/9-117. The statute contains specific instructions regarding the language that the plaintiff must include in this motion.
Παγε 30 οφ 53
IX.
POST-TRIAL AND POST-JUDGMENT MOTIONS A.
Post-trial motions in jury cases
Within 30 days after the jury renders its verdict, either party may move for a judgment notwithstanding the verdict, an arrest of judgment, or a new trial. 735 ILCS 5/2-1202. A timely-filed motion stays enforcement of the judgment. Id. B.
Post-trial motions in non-jury cases
Within 30 days after entry of the judgment, either party may move for a rehearing, retrial, modification of the judgment, vacation of the judgment, or for other relief. 735 ILCS 5/2-1203. A timely-filed motion stays enforcement of the judgment. Id. C.
Motions to vacate default judgments 1.
Within 30 days of the judgment
Pursuant to 735 ILCS 5/2-1301(e), the defendant may move to vacate a default judgment within 30 days after entry of the judgment. 2.
More than 30 days after judgment
Pursuant to 735 ILCS 5/2-1401, the defendant may file a petition to vacate a default judgment more than 30 days but less than two years after entry of the judgment. The petition must set forth facts showing that the defendant has a meritorious defense, and exercised due diligence in presenting this defense and filing the 2-1401 petition. Klein v. LaSalle National Bank, 155 Ill. 2d 201, 206, 613 N.E.2d 737, 739 (1993).
Παγε 31 οφ 53
D.
Vacating a judgment for possession on the grounds that the plaintiff reinstated the tenancy
Pursuant to 735 ILCS 5/12-183(g), the defendant in a forcible action may petition the court to vacate a judgment for possession if, after entry of the judgment, the plaintiff has by some act reinstated the defendant's tenancy. Janusz v. Kaleta, 57 Ill. App. 2d 127, 207 N.E.2d 142 (1st Dist. 1965) (vacating a judgment for possession because, after the writ of execution was issued, the plaintiff entered into a new lease agreement with the defendant). As opposed to motions brought under § 2-1401, motions brought under § 12-183(g) may be brought more than two years after entry of the judgment.
Παγε 32 οφ 53
X. FEDERALLY-SUBSIDIZED HOUSING Federally-subsidized housing includes public housing, Section 8 housing, and other HUD-subsidized housing. In almost all cases, the owner or manager of a federally-subsidized unit may not terminate the tenant’s lease without good cause. (There is one exception to this rule. Landlords who participate in the Section 8 tenant-based assistance program, also known as the Housing Choice Voucher Program, may terminate the tenant’s lease without cause, but only after the initial term of the lease agreement expires. This exception will be discussed below in Section IX(B)(1)(b).) A.
Public Housing
Public housing is built and owned by a public housing authority, but subsidized and regulated by HUD. In Chicago, the public housing authority is the Chicago Housing Authority (CHA). 1.
Evictions
The procedures for evicting a CHA resident are set forth in the federal regulations codified at 24 C.F.R. Part 966. These regulations provide that CHA may not terminate a tenancy except for good cause. 24 C.F.R. § 966.4(l)(2). The Forcible Act provides that emergency eviction proceedings may be held when a public housing authority (“PHA”) is trying to evict a resident for engaging in drug-related and/or violent criminal activity. 735 ILCS 5/9-118. The emergency proceedings can be used only if all of the following conditions are met: •
The forcible complaint seeks possession of property owned or managed by a PHA;
•
The complaint is verified; Παγε 33 οφ 53
•
The complaint alleges that there is direct evidence that the tenant has engaged in any of the drug-related or violent criminal activity listed in the statute; and
•
Both a demand for possession and a copy of the verified complaint setting forth the relevant facts are delivered to the tenant at least 14 days before a hearing on the complaint is held.
735 ILCS 5/9-118(b). In all actions brought under Section 118 of the Forcible Act, “no predicate notice of termination . . . shall be required to initiate an eviction action.” 735 ILCS 5/9-118(b-5). This provision of the Forcible Act, however, conflicts with the federal regulations governing the public housing program. See 24 C.F.R. § 966.4(l)(3). Accordingly, it may be invalid. If the PHA accepts the tenant’s rent after filing a suit under Section 118 of the Forcible Act, the acceptance of rent shall not serve as a basis for dismissing the suit. 735 ILCS 5/9118(c). But if the PHA accepts rent after learning about the alleged violation but prior to filing suit, the acceptance of rent shall constitute waiver. If the tenant appears for trial, the matter shall not be continued for more than 7 days, except by agreement of the parties. 735 ILCS 5/9-118(d). Furthermore, a judgment for possession entered under Section 118 of the Forcible Act may not be stayed for more than 7 days. 735 ILCS 5/9-118(e). 2.
Termination notices
When CHA is seeking to evict a tenant for nonpayment of rent, it must first serve that tenant with a notice demanding payment of the amount owed within no less than 14 days.
Παγε 34 οφ 53
24 C.F.R. § 966.4(l)(3)(i)(A). When CHA is seeking to terminate the resident’s tenancy for some other violation, the notice must specify the grounds for the termination. 24 C.F.R. § 966.4(l)(3)(i)(C)(ii). When CHA is required to afford the tenant an opportunity for a grievance hearing, the notice shall also inform the tenant of her right to request such a hearing. Id. When CHA is required to afford the tenant an opportunity for a grievance hearing and the tenant makes a timely request for such a hearing, CHA may not consider the lease terminated until the grievance process has been completed. 24 C.F.R. § 966.4(l)(3)(i)(C)(iv). When CHA decides not to afford the tenant a grievance hearing, and it is under no obligation to do so, the termination notice must inform the tenant that she is not entitled to such a hearing. 24 C.F.R. § 966.4(l)(3)(i)(C)(v). 3.
Grievance procedures
CHA residents may request an administrative grievance hearing in all evictions except those involving allegations of: •
criminal activity that threatens another person's health, safety, or right to peaceful enjoyment, or
•
violent or drug-related criminal activity.
24 C.F.R. § 966.51. The grievance hearing must comply with the procedural safeguards set forth in 24 C.F.R. § 966.56. CHA's failure to comply with these procedures constitutes a defense to the eviction action. Johnson v. Illinois Department of Public Aid, 467 F.2d 1269, 1273 (7th Cir. 1972); Chicago Housing Authority v. Harris, 49 Ill. 2d 274, 278, 275 N.E. 2d 353, 356 (1971). Παγε 35 οφ 53
B.
Section 8 Housing
Section 8 of the revised United States Housing Act of 1937 (42 U.S.C. § 1937) authorizes many subsidized housing programs, and each one is governed by a different (but often similar) set of federal regulations. When presiding over a case involving an eviction from Section 8 housing, it is helpful to identify the specific program involved. Section 8 assistance may be either tenant-based or project-based. 1.
Section 8 tenant-based assistance
The Section 8 tenant-based assistance program (also known as the Housing Choice Voucher Program) is governed by the federal regulations codified at 24 C.F.R. Part 982, and is administered by a local housing agency called CHAC, Inc. Families eligible to participate in this program are issued a Voucher and given an opportunity to enter the private housing market in search of an apartment that has been maintained in compliance with housing quality standards. Once the family has located a suitable apartment, it enters into a lease agreement with the owner, and the owner enters into a housing assistance payments contract with CHAC. The lease sets forth the family's share of the rent, and the HAP contract obligates CHAC to pay a rental subsidy equal to the difference between the family's contribution and the approved contract rent for the unit. a.
Abating the housing assistance payment when the landlord fails to maintain the premises
The landlord has an obligation to maintain the apartment in conformity with the Παγε 36 οφ 53
HUD-imposed housing quality standards. 24 C.F.R. 982.404(a). If he fails to comply with this requirement, CHAC may abate the housing assistance payments until the landlord makes the necessary repairs. 24 C.F.R. 982.404(a)(2) and (a)(3). The tenant is not responsible for these payments, and CHAC's decision to abate may not be used as grounds for evicting the tenant. 24 C.F.R. 982.310(b) and 982.451(b)(4)(B)(iii). If CHAC abates the housing assistance payments for 180 days and the landlord does not make the necessary repairs, the HAP contract terminates. 24 C.F.R. 982.455.10 b.
Grounds for eviction
The initial term of the lease agreement must be for at least one year. 24 C.F.R. 982.309(a). During the initial term, the landlord may not terminate the lease without good cause. 24 C.F.R. 982.310(a). He may, however, terminate the lease without cause at the end of the initial term, or at the end of any successive definite term. The owner must give the tenant a written termination notice, and if the lease is being terminated for good cause the notice must specify the grounds for termination. 24 C.F.R. § 982.310(e). 2.
Section 8 project-based assistance
In the project-based assistance programs, the subsidy runs with the premises. Therefore, the tenant loses the subsidy if she is evicted. The following project-based programs are governed by the following federal regulations: •
New Construction (24 C.F.R. Part 880);
10
Since the termination of this contract terminates the lease agreement between the owner and the tenant (24 C.F.R. § 982.309(b), CHAC must issue the tenant another voucher so she can move to a new unit and continue receiving Section 8 rental assistance. 24 C.F.R. 982.314(b)(1)(i). Παγε 37 οφ 53
•
Substantial Rehabilitation (24 C.F.R. Part 881);
• •
Moderate Rehabilitation (24 C.F.R. Part 882); State Housing Agencies Program (24 C.F.R. Part 883);
•
Loan Management Set-Aside Program (24 C.F.R. Part 886, subpart A);
•
Program for the Disposition of HUD-Owned Projects (24 C.F.R. part 886, subpart C).11
24 C.F.R. Part 247 governs the eviction process for the Loan Management Set-Aside Program and the Program for the Disposition of HUD-Owned Projects. This part provides, among other things, that the landlord must serve the termination notice by first-class mail and by either delivering a copy to the tenant or by posting a copy on the tenant’s door. 24 C.F.R. 247.4(b). Furthermore, the notice must state a specific termination date, and set forth the reasons for termination with enough specificity to enable the tenant to prepare a defense. HUD has determined that if a tenant's failure to pay rent in a timely manner results from the fact that her public assistance benefits do not arrive until after the first of the month, her late payment should not constitute grounds for eviction. Therefore, as long as the tenant pays her rent within three business days of the date on which she receives her benefits, the owner may not terminate the tenancy for the late payment. See HUD Circular Letter dated April 24, 1986 (stating that owners and managers of federally-assisted projects should not consider a rent 11
All the Section 8 project-based programs are administered by HUD except for the Moderate Rehabilitation Program, which is administered by CHAC, Inc.
Παγε 38 οφ 53
payment to be late, for the purpose of constituting material non-compliance with the lease, if it is tendered within three days of the tenant's receipt of her public aid benefits); see also American National Bank & Trust Co. v. Dominick, 154 Ill. App. 3d 275, 280, 507 N.E.2d 512, 515 (1st Dist. 1987) (relying on the HUD circular and holding that a tenant's repeated late payments did not constitute material noncompliance with the lease since she always tendered her rent within three days of receiving her public aid check). C.
Other HUD-Subsidized Housing
24 C.F.R. Part 247 governs the procedure for evicting tenants from units that are subsidized pursuant to the following programs: •
the Section 221(d)(3) Below Market Interest Rate Program;
•
the Section 236 Program; and
•
the Section 202 Program.
Tenants who receive rent subsidies under these programs can take advantage of the HUD policy against evicting public aid recipients for nonpayment of rent if they tender their rent payments within three days of receiving their benefits. (This policy is described in more detail above in Section X(C)(2)(a).) D.
Emergency eviction proceedings for Section 8 and other HUD-subsidized housing
The Forcible Act provides that emergency eviction proceedings may be used when the resident of Section 8 or other HUD-subsidized housing refuses to let the landlord inspect the premises on two separate occasions within a 30-day period. 735 ILCS 5/9-119. These proceeding can be held, however, only when all the conditions set forth in Section 119 of the Forcible Act are met. Παγε 39 οφ 53
XI.
COOPERATIVES, CONDOMINIUMS, AND MOBILE HOME PARKS A.
Cooperatives
In Quality Mgmt. Services v. Banker, 291 Ill. App.3d 942, 945, 685 N.E.2d 367, 36869 (1st Dist. 1997), the court confirmed that the Forcible Act applies to cooperatives. In reaching this decision, the court noted that some legal publishers have mistakenly cited Central Terrace Cooperative v. Martin, 211 Ill. App. 3d 130, 569 N.E.2d 944 (2d Dist. 1991), for the proposition that cooperatives are excluded from the Forcible Act. In an attempt to correct this mistake, the court discussed Central Terrace in some detail and distinguished it from cases involving the "usual" cooperative arrangement: In Central Terrace, David Martin, a member of the Central Terrace Co-operative (CTC), appealed from a judgment in favor of CTC on its complaint for forcible entry and detainer. The trial court, relying on this court's earlier decision in Sinnissippi Apartments, Inc. v. Hubbard, found that a landlord tenant relationship was created by the cooperative lease agreement and thus CTC's cause was properly brought under the forcible statute. On appeal, this court reversed. We determined that Martin's relationship with CTC did not appear to be the "usual" cooperative arrangement set forth in Sinnissippi. . . . Thus, we held that the trial court's finding that a landlord-tenant relationship existed was against the manifest weight of the evidence.
Παγε 40 οφ 53
Quality Mgmt. Services v. Banker, 291 Ill. App.3d 942, 944, 685 N.E.2d 367, 368 (1st Dist. 1997) (citation omitted). The court went on to explain why cooperatives are generally governed by the Forcible Act. [A] cooperative is a "legal hybrid" in that the member possesses both stock and a lease . . . . The proprietary lease, also referred to as an occupancy agreement, is the basic document entitling a member of a cooperative the right to occupy a particular dwelling unit and setting out the member's rights in relation thereto. As set forth in Sinnissippi, the proprietary lease generally contains many of the provisions found in long-term residential leases. . . . In the usual situation, the relationship between a cooperative and its members is, in part, that of landlord and tenant. The existence of such a relationship brings cooperatives within the purview of section 9-102(a)(4) of the Act. Quality Mgmt. Services v. Banker, 291 Ill. App.3d 942, 945, 685 N.E.2d 367, 369, (1st Dist. 1997). The court concluded that there is "no reason to treat the proprietary lease or occupancy agreement differently than other leases for purposes of the Act simply because it has been paired with an ownership interest in the corporation which holds title to the real estate." Quality Mgmt. Services v. Banker, 291 Ill. App.3d 942, 946, 685 N.E.2d 367, 370, (1st Dist. 1997). Citing Central Terrace, however, the court noted that "there may be some instances where there are insufficient indicia of a landlord tenant relationship to bring a particular cooperative within the coverage of the Act . . . . " Quality Mgmt. Services v. Banker, 291 Ill. App.3d 942, 945, 685 N.E.2d 367, 369, (1st Dist. 1997).
Παγε 41 οφ 53
The RLTO does not govern cooperatives. RLTO § 5-12-020(f) (“a dwelling unit in a cooperative occupied by a holder of a proprietary lease” is not covered); Harper Square Housing Corp. v. Hayes, 305 Ill. App. 3d 955 (1st Dist. 1999). B.
Condominiums
When a condominium owner rents his unit to a tenant and then decides to evict that tenant, the eviction action is treated like any other residential eviction. Sometimes, however, the owner is the defendant in a forcible action filed by the condominium association for failure to pay assessments or other fees. The association must follow the procedures specified in 735 ILCS 5/9-104.1, and provide the owner with a written demand for the amount due. This demand must afford the owner at least thirty days to pay. Id. If he does not comply with this demand, the association may file a forcible action against him. Id. In the event a judgment for possession is entered against the owner, he is entitled to a stay of not less than 60 nor more than 180 days. 735 ILCS 5/9-111. Furthermore, he may file a motion to vacate the judgment for possession if he satisfies any money judgment entered against him, reimburses the association for its costs and reasonable attorney's fees, and is not in arrears on his share of the common expenses for the period subsequent to that covered by the judgment. 735 ILCS 5/9-111. And "if the court, upon the hearing of such motion, is satisfied that the default in the proportionate share of expenses has been cured, and if the court finds that the premises are not presently let by the board of managers . . . the judgment shall be vacated." 735 ILCS 5/9-111. If the condominium association wants to evict not only the defaulting owner but also his tenant, it must follow the procedures set forth in 735 ILCS 5/9-104.2(a-5), as amended. This Παγε 42 οφ 53
statutory provision (which was amended on July 20, 1999) provides that the association may join the tenant in the forcible action that has been filed against the owner, or file a separate suit. Id. If the tenant is joined within the same suit, he is not entitled to any advance written notice. Id. Furthermore, the association may join him at any time (prior to the entry of a judgment) by filing an amended complaint and summons for trial. Id. If the association alleges in its complaint that the premises is occupied by individuals other than or in addition to the owner, and that the identities of these individuals is unknown, they may be joined as “unknown occupants” and served with summons. Id. If the association pursues a forcible action against just the owner, and, after obtaining a judgment for possession decides it does not want to accept the owner’s tenant as its own, the association must file a separate action against that tenant. Before filing this action, the association must serve the tenant with both a written notice of the judgment against the owner and a 10 day notice to quit. 735 ILCS 5/9-104.2, as amended. C.
Mobile home parks
The eviction of a tenant from a mobile home park with five or more lots for rent is governed by the Mobile Home Landlord and Tenant Rights Act, 765 ILCS 745/1 et seq.
Παγε 43 οφ 53
XII.
LOCK-OUTS Any landlord who tries to evict his tenant without following the procedures set forth in
the Forcible Act, which provides the exclusive remedy for landlords seeking to recover possession of the leased premises, is engaging in a lock-out. In the most common lock-out situation, the landlord changes the locks on the tenant's doors. Another common (but illegal) practice involves shutting off the tenant's utility services or removing the tenant's doors, windows, or personal belongings in an attempt to force her to move. Lock-outs are strictly prohibited by both state and local law. This section sets forth the relevant statutory and municipal provisions, and explains how the forcible court should handle a complaint alleging a violation of these provisions. A.
The Forcible Act's prohibition against lock-outs
The Forcible Act provides that "[n]o person shall make an entry into lands or tenements except in cases where entry is allowed by law, and in such cases he or she shall not enter with force, but in a peaceable manner." 735 ILCS 5/9-101. It also states when a forcible action may be maintained. 735 ILCS 5/9-102. A landlord seeking to recover possession of the leased premises must comply with the procedures set forth in the Forcible Act. People v. Evans, 163 Ill. App. 3d 561, 564, 516 N.E.2d 817, 819 (1st Dist. 1987). Any attempt to evict the tenant without following these procedures is illegal. Id. Even after the landlord files an eviction action and obtains a judgment for possession, he cannot forcibly evict the tenant himself. Instead, he must utilize the county sheriff to enforce the
Παγε 44 οφ 53
order for possession because only the sheriff has the authority to execute such orders. 55 ILCS 5/3-6019. B.
The RLTO's prohibition against lock-outs
Section 5-12-160 of the RLTO prohibits lock-outs, which is defined as any attempt to evict the tenant by: •
Changing or plugging the locks on any of her doors;
•
Blocking an entrance to her apartment;
•
Removing any doors or window from her unit;
•
Shutting off any of her utility services;
•
Removing her personal property from the apartment;
•
Removing or rendering inoperable any of her appliances;
•
Threatening to harm her or her property; or
•
Taking any action that renders the unit or any part thereof, or any personal property located therein, inaccessible or uninhabitable.
If the landlord violates the prohibition against lock-outs, the tenant may recover twice her actual damages or two months' rent (whichever is greater). Id. Section 5-12-160 of the RLTO applies only to traditional landlord-tenant relationships (i.e., those involving rental agreements for dwelling units). Therefore, it does not protect persons staying in hospitals, convents, monasteries, school dormitories, temporary overnight or transitional shelters, or cooperatives. RLTO, § 5-12-020. Nor does it protect a landlord's
Παγε 45 οφ 53
employee if her right to occupancy is conditioned upon her being employed in or about the premises.12 RLTO, § 5-12-020. Furthermore, the provisions of § 5-12-160 do not apply when: 1.
The landlord has followed the eviction procedures set forth in the Forcible Act and paid the sheriff to enforce a valid judgment for possession;
2.
The landlord has acted in compliance with the laws governing distress for rent (See 735 ILCS 5/9-301 et seq.);
3.
The landlord has interfered with the tenant's right to possession only to make necessary repairs or inspections, and only as provided by law;13 or
12
Many of these persons, however, are still protected by the Forcible Act, which constitutes the sole remedy for any party who wants to evict another party living in the premises under an agreement of any kind. 13
Section 5-12-050 of the RLTO provides that, except in cases of emergency, the landlord
Παγε 46 οφ 53
4.
The tenant has abandoned the dwelling unit.14
C.
Granting relief from lock-outs
The victim of a lock-out may file a verified complaint for injunctive relief. The right to seek such relief is provided by 735 ILCS 5/11-102, et seq., and § 5-12-160 of the RLTO. The tenant may join a claim for damages to her complaint. RLTO, § 5-12-160. must provide the tenant with two days' notice before entering her apartment. Furthermore, he may enter the unit only at reasonable times. An entry between 8:00 a.m. and 8:00 p.m. (or at any other time requested by the tenant) is presumed reasonable. 14
Section 5-12-130(e) of the RLTO provides that a tenant shall not be deemed to have abandoned her dwelling unit unless: • She gives her landlord actual notice that she is leaving and has no intention of returning; or • Every person who is entitled under the rental agreement to live in the apartment unit has been gone for a period of 21 days (or for one rental period if the rental agreement is for less than a month), these persons have removed their personal property from the unit, and rent for that period is unpaid; or • Every person who is entitled under the rental agreement to live in the apartment unit has been gone for a period of 32 days, and rent for that period is unpaid.
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Because the tenant will most likely need emergency relief, she may file (along with her complaint) a verified motion for a temporary restraining order ("TRO") and a preliminary injunction enjoining the landlord from failing to restore her to possession of her unit. See 735 ILCS 5/11-101. The pleadings should allege facts that show the tenant has suffered and will continue to suffer irreparable injury for which there is no adequate remedy at law, and these facts should also be set forth in an attached affidavit. Pursuant to Rule 2.2(a) of the Circuit Court of Cook County, the tenant is not required to provide the landlord with formal notice of her emergency motion. She should, however, provide him with the best notice she can under the circumstances. In most cases, the tenant will file her complaint and emergency motion in the chancery division. See General Order 2.1(b)(1) of the Circuit Court of Cook County. However, if she is the defendant in a pending eviction action, she may seek relief from the forcible court, which has the power to grant injunctive relief. See South Austin Realty Association v. Ethel Sombright, 47 Ill. App. 3d 89, 94, 361 N.E.2d 795, 798 (1st Dist. 1977). Before issuing an injunction, the court may require the tenant to post a bond. See 735 ILCS 5/11-103. The purpose of the bond is to protect the landlord against any damages he may suffer if the injunction is later found to have been improperly issued. Id. If the tenant is financially unable to post a bond, or the landlord will suffer no damages as a result of the injunction,15 the court should waive the bond. See General Electric Co. v. Local 997 United Auto Workers, 8 Ill. App. 2d 154, 167, 130 N.E.2d 758, 764 (3d Dist. 1955). 15
The injunction merely prohibits the landlord from engaging in clearly unlawful conduct, and does not restrain him from lawful activities. Παγε 48 οφ 53
If the forcible court enters an ex parte order granting the TRO, this order must set forth, as findings of the court, the facts establishing that a lock-out has occurred. 735 ILCS 5/11-101. It must also state that the movant has established all the necessary elements of a TRO. Id. If the order was granted without notice to the landlord, it must state why this was necessary. Id. It must also set a hearing date for the motion for a preliminary injunction. Id. The order remains in effect for no more than ten days unless it is extended for good cause shown. Id.
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XIII. DISTRESS FOR RENT Part III of the Forcible Act, entitled “Distress For Rent,” authorizes a landlord to seize his tenant’s personal property when the tenant fails to pay rent. 735 ILCS 5/9-301 et seq. The landlord must, however, strictly comply with the requirements set forth in the statute. Hill v. Coats, 109 Ill. App. 266, 268 (3d Dist. 1903). Residential landlords rarely file distress for rent actions because it is more effective and expedient to file a joint action for possession plus rent. Nevertheless, a landlord may seize the tenant’s property (wherever in the county that property is located) in order to secure payment of the rent that is due. Immediately after seizing the tenant’s property, the landlord must file with the clerk of the circuit court a copy of the distress warrant and an inventory of the property seized. 735 ILCS 5/9-302. A summons is then issued and served on the tenant. 735 ILCS 5/9-303. The distress warrant stands as the landlord’s complaint and the action proceeds as a suit for rent (735 ILCS 5/9-305), to which the tenant can raise affirmative defenses and counterclaims. 735 ILCS 5/9-306. If the landlord establishes that the tenant owes rent, he is entitled to a judgment for the amount found due by the court. 735 ILCS 5/9-307. The landlord is not entitled to seize property that is exempt from judgment, such as necessary clothing, school books, family pictures, unemployment compensation, public aid benefits, etc. 735 ILCS 5/9-315. (A complete list of items that may not be seized is set forth at 735 ILCS 5/12-1001.) A landlord who seizes exempt property is liable to the tenant for an amount equal to twice the value of the property seized, plus court costs. 735 ILCS 5/12-1005. The value of the property seized must bear some reasonable relationship to the amount of rent owed. Harms v. Solem, 79 Ill. 460, 463 (1875). Furthermore, the seizure must be made Παγε 50 οφ 53
in a peaceful manner. Greco v. Guss, 775 F.2d 161, 166 (7th Cir. 1985). Finally, no deputy sheriff or other state agent may help execute a distress warrant. Id. Once the tenant’s property has been distrained, she can get it back by filing a bond equal to twice the rent claimed. 735 ILCS 5/9-311. The property can also be replevied pursuant to 735 ILCS 5/19-101 et seq., but the tenant must file a bond equal to twice the value of the property. If the value of the property seized far exceeds the amount of rent owed, the tenant can sue the landlord.
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