Printable Version of the Eviction Pamplet

When your Landlord wants
to Evict You

Information for Illinois Tenants

A Publication of Prairie State Legal Services

Revised: August 15, 2002

Content Updated: July 2001

About These Materials

These materials provide general information about the eviction process under Illinois law. It primarily covers eviction situations between a residential tenant and a private landlord and does not explain everything about evictions. Local laws in your area may give you additional rights and responsibilities. Additional eviction rules apply to federally-subsidized and public housing.

This pamphlet is not meant to be a substitute for legal advice, nor is it meant to replace a lawyer. If you have additional questions or want legal advice, contact the Prairie State Legal Services office nearest you.

Eviction

An eviction lawsuit is the way a landlord legally removes a residential tenant from a rental unit. Evictions can be done for many different reasons, but landlords must follow certain procedures in order for the eviction to be lawful.

If your landlord wants to evict you, you should know the following information:

Landlords can evict you when the term of your lease ends, if you did not pay your rent on time, if you damaged the property, or if you violated other lease provisions. Additionally, if you have a month-to-month lease, the landlord can evict you after giving you a 30-day notice of termination of your lease even if your rent is paid and you did not violate the lease;

It is not lawful for your landlord to evict you because you complained to a governmental authority (such as a city building inspector) about any conditions in your rental unit which you reasonably think violate a building code, health code, or any similar law;

Your landlord may not evict you because of your race, sex, age, national origin, family status, disability or religion;

It is not lawful for your landlord to evict you by changing the locks on your door, by turning off the utilities to your apartment, or by any other forceful methods. If your lease says your landlord can use these methods without going to court, that part of the lease cannot be enforced. If your landlord tries any of these methods to get you to leave, immediately call the sheriff or an attorney. You may call your local legal services office to see if you are eligible for assistance;

Generally, your landlord may not take any of your personal belongings as a way to get you to move out. If you owe rent, your landlord can take your belongings if he or she immediately files a lawsuit against you, listing all of the property that was taken. This kind of lawsuit is called a "distress for rent". If your landlord takes your property without filing a lawsuit, the seizure is unlawful and the landlord may be liable for damages.

YOU CAN ONLY BE EVICTED BY LEGAL MEANS. If your landlord wants to evict you, there are certain steps which the landlord must follow for the eviction to be lawful. If proper procedure is not followed, the eviction is unlawful, and the landlord may be liable for damages.

Step One - Notice

Generally, you have the right to receive written notice before an eviction lawsuit is filed against you. This written notice must be dated and signed by the landlord. It does not have to be notarized or delivered by the sheriff, but it generally must be delivered in person by someone. This notice can be hand-delivered to you or to anyone aged 13 years or older who lives with you. The notice can also be delivered by certified mail. Posting the notice on the door or leaving it inside the premises is not proper. Improper service of an eviction notice may be a legal defense to eviction, particularly if you did not receive the notice on time because of the way it was served. Keep any notice your landlord gives you. There are different types of notices, depending on the reason for the eviction and type of lease you have.

30-Day Notice. If you have a month-to-month lease, your landlord may end it by giving you a 30-day written notice. The landlord does not have to give you a reason for the eviction. If you do not move out after the 30 days, the landlord may file an eviction lawsuit against you. If you pay rent by the week, the landlord only needs to give you a seven-day notice.

5-Day Notice for Nonpayment of Rent. To evict you for nonpayment of rent, the landlord must give you a written 5-day notice. The notice must tell you how much you owe and cannot be served until the day after the rent was due. If you pay your rent in full within five days of receiving the notice, you cannot be evicted. Also, if you offer to pay the full rent within the five days, but the landlord refuses to take it from you, you cannot be evicted for failing to pay your rent. Bring someone with you when you try to pay so that you will have a witness that you did offer to pay your rent to the landlord. Also, be sure to keep your rent money if your landlord refuses to take it, because if you defeat the eviction in court, you will still have to pay the rent that you owe.

After the five days are up, if your landlord agrees to take your rent and let you stay, be sure to get the landlord's agreement to let you stay in writing. That way, if your landlord goes ahead with an eviction case, you have some evidence to show the court that the landlord agreed to continue to rent to you.

10-Day Notice to Quit. For any other breach of the lease, the landlord must give you 10 days written notice. This notice must tell you in writing what the lease violation is and state that the landlord has decided to end your lease because of it. The notice must give you at least 10 days to leave. If you do not move out after the 10 days are up, your landlord may file an eviction lawsuit against you. It is very important to note that under Illinois law, you do not have the right to "cure" the breach to avoid eviction. This means that even if you fix the problem, the landlord can still evict you. If your landlord tells you that you can stay if you fix the problem, make sure that you get this agreement in writing.

No Notice Required. There are two situations in which a landlord is not required to give you written notice of eviction:

(1) At the end of a lease term, if the end date is stated on your written lease. For example, if you have a written lease that says the lease ends on September 1, 2001, the lease itself serves as notice to you that your tenancy ends on September 1, 2001, and no further notice is required.

(2) Some written leases say that the tenant waives the right to notice of termination of the tenancy during the lease term. This means that the tenant gives up the right to notice, so read your lease carefully to find out if this applies.

In some cases, when an eviction is based on claims of drug or criminal activity, the notice requirements are different. If this is your situation, consult with an attorney to understand your rights fully.

Remember, even if you receive an eviction notice, you do not have to move out until your case has been in court and the judge has signed an order requiring you to move. Be aware that if you stay and your landlord takes you to court, you may have to pay certain costs if you lose your case. See Step Four - Judgment.

Step Two - Landlord Files A Lawsuit

If your landlord wants to proceed to evict you once the written notice period has ended, he or she must file an eviction lawsuit (called "An Action in Forcible Entry and Detainer") against you in court. Normally, the county sheriff or a special process server will then serve you with a summons stating the time, date, and courtroom you will have to go to court in your case. Be sure to go to court on the specified date and time. Even if you have already moved out, you should go to court to make sure that your landlord gives the judge correct information, including the amount of rent you owe. If you do not show up at all, the judge will probably enter a money judgment and an eviction order against you, and you will have to move out, possibly on that same day.

Step Three - Going To Court

Appearing in Court

Your summons will tell you when you need to go to court for the first time. The date on the summons is called the "return date." Depending on which county you live in, the procedures which the court follows regarding your appearance may be different. At a minimum, you should plan to be present in court on the date and at the time identified on the summons. However, you should also check with the Circuit Clerk in your county or with your local legal services office to see if there are other things you should do - such as filing a written appearance - before the return date.

Asking for a Trial

When you go to court on the return date, you should be prepared to tell the judge whether you want to fight the eviction or not. Unless you believe that you should lose your case or that you want to move out, you should tell the judge that you want a trial. (The judge may use the term "hearing" instead of trial.) If you do not tell the judge that you want a trial, the judge may enter an order evicting you that day. In some cases, the judge may not ask you if you want a trial; instead the judge may ask you if you have a "defense" to the case. By asking this, the judge wants to know if you have anything to say or any evidence to present which would affect his or her decision about evicting you. If you want a trial, you need to tell the judge that you have a defense. If you do not, the judge may enter an order against you without a trial. In come counties, you will have to have a trial the same day. Elsewhere, your trial will then be scheduled for some time in the future - usually one week later.

You have the right to request a jury trial, but jury trials are very complicated, and you may not want to demand one unless you have or plan on getting an attorney. If you want a jury trial, you must file a written request for one when you first appear in court.

You may want to contact the Circuit Clerk’s office or your local legal services office to find out about the practices typically followed in your county

The Trial

At the trial, the judge will decide about your right to remain in the premises and whether you owe the landlord any money for rent. (If there is a question about whether you owe money for damage to the property you are renting, it should be addressed in a separate lawsuit.) The hearing, or trial, is your opportunity to tell your side of the story to the judge. You may participate with or without an attorney. During the trial, you may raise any legal defenses that you have. (Some typical legal defenses to eviction are discussed below). If you are still living in the house or apartment, you can also ask the judge for additional time to move out. The judge does not have to give you time to move, but the judge may do so.

Presenting Your Defense

The trial is your opportunity to present any defenses which you may have. Be sure to bring to the trial any receipts, documents, photographs of the apartment, or witnesses that help your case. (Written statements from your witnesses will not be considered by the court. Your witnesses must appear in person.) There are many different defenses which may apply in an eviction case. Here are some typical defenses raised by tenants, depending on the specific circumstances:

Possible defenses to an action based on nonpayment of rent:

You are not behind in your rent
You did not get a 5-day notice
The 5-day notice did not state the amount that you owe
The 5-day notice asked for more rent than you owe, and you paid or tried to pay the amount you really owe
You offered the full amount of rent within the five days, but your landlord refused to accept your payment (if you have a witness to this, the witness must be present in court)
The apartment is in such bad condition that it is worth less than the rent or that you had to make costly repairs yourself. However, under Illinois law, you are not allowed to withhold rent for bad conditions. This defense may only reduce the amount of rent that you owe, and applies only in very serious situations.

Possible defenses to an action based on a lease violation:

You did not violate your lease
The 10-day notice did not say how the lease was violated
Your landlord accepted your rent after learning about the lease violation (therefore, your landlord waived (gave up) his or her right to claim that you should be evicted for that violation)

Other possible defenses:

The eviction notice did not give you the required number of days (5, 10 or 30) to move
The eviction notice was not served properly
Your landlord filed the eviction lawsuit before the full number of days specified in the notice expired
You were served with an eviction notice in retaliation for complaining to the health department, building inspector or other government official about the conditions in your home
Your landlord is attempting to evict you because of your race, disability, sex, age, national origin, family status, or religion

Step Four - Judgment

After hearing from both sides in the case, the judge will make a decision and enter an order. Do not leave court without a copy of the order. Be sure to read through the judge's order to determine what your rights and responsibilities are. If the judge decides the case in your favor, you will be allowed to stay in your house or apartment and keep paying rent according to your rental agreement.

However, if the judge decides the case against you, he or she will issue an eviction order. A court order for eviction generally includes a date by which you must move and a statement of the amount of rent you owe your landlord. The losing party in a lawsuit normally must pay the winning party’s court costs. The court may award reasonable attorneys fees if you lose the case, but only if your written lease specifically says you must pay attorneys fees. The amount of any costs or fees should also be specified in the eviction order.

The judge can order you to move out on the day of the trial. Even when judges give tenants time to move, they usually only allow one or two weeks for the move. Under Illinois law, it does not matter if you have children, if you are pregnant, if you are sick, if it is winter, or if you have no place to go. The judge can still order you to move out of your home by a certain date.

Step Five - After the Judgment: Appeals, Enforcement and Collections

Once the judge enters an eviction order, that decision is final. Under Illinois law, however, you have the right to ask the court to reconsider its decision. You also have the right to appeal the decision to the Appellate Court. There are specific rules and procedures you must follow in order to appeal or request reconsideration of a decision. Generally, there is a 30-day deadline from the date of the order for filing an appeal or request for reconsideration. If you file late, the court will not review your case. If you want to ask for reconsideration or file an appeal, you should consult an attorney immediately after the judge issues the eviction order.

These procedures exist to so that a case can be reviewed if the judge has made a mistake. They are not an opportunity for a second trial. In addition, filing an appeal or request for reconsideration does not necessarily allow you to stay in your apartment while the case is pending. You can ask the court to allow you to stay pending the appeal, but the court does not have to do so. If the court does let you stay, it may require you to post a bond. You can suggest that you pay the rent while the appeal goes on.

If you do not move out by the date given in the eviction order, your landlord should have the county sheriff enforce the eviction order and force you to move out. After the date in the court order, the sheriff can force you to move without warning. The sheriff will enforce the order by supervising while your landlord moves you and your belongings out of the premises and onto the street.

If you do not pay the amount of money ordered by the court, your landlord may try to collect it from you. It is important to understand that there are limitations on what your landlord may do to collect the money. For example, if you receive public benefits such as Social Security disability, SSI, or TANF, those funds cannot be garnished or seized, or removed from your bank account. If your take-home pay is $231.75 or less per week, your wages cannot be garnished or taken if you are unable to pay the judgment. Even if you earn more than $231.75 per week, there are still limits on how much can be deducted or garnished from your paycheck.

You may want to review our materials on "When You Owe Money." Those materials describe your rights and obligations after a court judgment in greater detail.

Prepared by Prairie State Legal Services

Copyright 2002 Prairie State Legal Services, Inc. ALL RIGHTS RESERVED
For reprint permission contact Prairie State Legal Services, Attn: Publications
975 N. Main Street, Rockford, IL 61103, (815) 965-2134, publications@pslegal.org