landlord/tenant actions - illinois legal aid online · 2018-07-17 · illinois forcible entry and...

Landlord/Tenant

ActionsILLINOIS FORCIBLE ENTRY AND DETAINER ACT 735 ILCS 5/9-101 ET AL

EVANSTON RESIDENTIAL LANDLORD TENANT ORDINANCE-(EVANSTON RLTO) SECTIONS 5 ̶ 3 ̶ 1 TO 5 ̶ 3 ̶ 12-5

Illinois Forcible Entry and Detainer

ACT 735 ILCS 5/9-101et al 735 ILCS 5/9-104-Notice

Deliver the demand to the tenant;

Deliver the demand with any person age 13 or older residing on or being in charge of the premises;

Mailing the notice by certified or registered mail, return receipt requested, postage prepaid;

Posting the same on the premises in the event no one is in actual possession of the premises.


ACT 735 ILCS 5/9-101et al

735 ILCS 5/9-106

Defendant does not have to admit or deny allegations in the

complaint. It is presumed there is a general denial. If there are

Affirmative Defenses or Counterclaims, Defendant must file a

Response (Answer, Motion to Dismiss etc.)



735 ILCS 5/9-108

Either party may demand a jury trial;

If a lease has the tenant waiving this right, that clause is not

enforceable;

In general, landlords want bench trials (these move faster)



735 ILCS 5/9-109.5

The Standard of Proof is a “preponderance of the evidence.”

How to Approach the Case

Documents to Request/Review from the Client

A copy all leases, addendums to leases;

Copies of all receipts, cancelled checks or other evidence of payments

for rent, security deposits and interest on security deposits;

All written communication between the landlord or its agents and the

tenant;

Any phone/text records;

All notices (including any building code violation notices)and court

papers;

All photos or videos showing the condition of the apartment/property;

Names of any potential witnesses.


Review the 10 Day or 30 Day Notice (verify how it was served, for non payment of rent verify the amount is correct);

Review the Summons and Complaint;

Identify and discuss any Affirmative Defenses the client may have;

Identify the client’s end goal (Move out, Stay);

Identify any statutory damages client may be entitled to;

Discuss next steps, upcoming court date(s).


The 10 Day Notice should only include the past due rent;

It is not appropriate to include late fees, damages, costs or attorney fees in the demand;

See Payne v. Coates-Miller, Inc. 52 Ill. App. 3d 288 (1st Dist. 1977), 367 N.E.2d 406.

If the tenant attempts to tender all of the rent in arrears, landlord must accept it. See Madison v. Rosser, 3 Ill. App. 3d 851, (1st Dist., 1972)


File Appearance and Jury Demand;

Leave to File Answer (Affirmative Defenses/Counterclaims);

Discovery;

Negotiate a Settlement (can occur at any point in the case);

Trial.


First Time Up

Appearance and Jury Demand on File;

Case transferred to trial courtroom and next court date given.


Second Time Up

Leave to file answer/counterclaims (14 days) and initiate discovery

(interrogatories, request to admit, request to produce) (14 days);

If a Motion for Use and Occupancy has been filed request time to

respond to it as well. (7 days)


Third Time Up

May have a Use and Occupancy (U &O) hearing

Motion hearing

Status on Discovery

Settlement


What is Use and Occupancy?

It allows the landlord to continue receiving rent while the case is

going on;

If the tenant does not pay U&O the trial judge cannot enter an

Order for Possession (see Circle Management LLC v. Olivier, 378 Ill.

App. 3d 601(1st Dist., 2007), Rotheimer v. Arana, 384 Ill. App. 3d 569 (1st Dist., 2008).


During Use and Occupancy Hearing (U&O Hearing)

Plaintiff should present evidence of how much the rent is/or should

be based on comps in the area.

Defendant should present evidence of how much the rent should

be reduced based on the condition of the premises.


Fourth Time Up

Discovery Status

Settlement Status


Typical Settlements

Tenant agrees to move out by a certain date and the back rent,

defenses and counterclaims are dismissed;

The landlord and tenant enter into a repayment plan that allows the

tenant to catch up and remain in the premises;

Tenant is paid to leave and all the claims are dismissed.


Defenses/Counterclaims

Notice Defects

Premature Filing

Rent was paid/Landlord refusing payment

Cure/Compliance

Failure to Maintain

Breach of Implied Warranty of Habitability

Retaliation

Interruption of Tenancy

Discrimination


Personal Jurisdiction

Personal Service

Substitute Service

Constructive Service


Lack of Personal Jurisdiction

Limited Appearance (735 ILCS 5/2-301)

Motion to Quash Service of Summons

“Clear and convincing evidence” standard


Service on a temporary guest

Substitute service cannot be made upon a temporary guest

See Friedman Bros. Furniture Co. v. Stambaugh, 50 Ill. App. 3d 595,

367 N.E.2d 135, Ill. Dec. 701 (3d Dist. 1977)


Examples of when a 735 ILCS 5/2-619 Motion to Dismiss is Appropriate:

Improper service of a Notice to Terminate

Premature filing of the Complaint

Defect has been cured

Past due rent has been paid

Violation has been resolved


Breach of Warranty of Habitability

Tenant has the burden of proof

Must prove by a preponderance of the evidence that:

There are conditions that exist that violate building codes and render

the apartment unfit;

The tenant has suffered damages.


Breach of Warranty of Habitability

Determined on a case by case basis (Glasoe v. Trinkle, 107 Ill. 2d 1, 479

N.E.2d 915, 88 Ill.Dec. 895 (1985)

Nature of the defect;

How long it existed;

Effect on habitability;

If landlord knew of should have known defect existed;

Did landlord correct the defect in a reasonable amount of time.


Warranty of Habitability

The fact that the tenant continued to live at the premises does not

mean that the premises complies with the warranty of habitability.

Pole Realty Co. v. Sorrells, 84 Ill.2d 178, 417 N.E.2d 1297, 49 Ill.Dec. 283

(1981)


Retaliation: Evanston RLTO Section 5 ̶ 3 ̶ 9-1

In an action by or against the tenant, if there is evidence of a

complaint within one year prior to the alleged act of retaliation, it

may be presumed that the landlord's conduct was retaliatory. The

presumption does not arise if the tenant made the complaint after

notice of a proposed rent increase.


5-3-12. - INTERRUPTION OF TENANT OCCUPANCY.

5-3-12-1. - UNLAWFUL INTERRUPTION.

It is unlawful for any landlord or any person acting at his/her direction to knowingly oust or dispossess or attempt to oust or dispossess any tenant from a dwelling unit without authority of law, by plugging, changing, adding or removing any lock or latching device; or by blocking any entrance into said unit; or by removing any door or window from said unit; or by interfering with the services to said unit, including, but not limited to, electricity, gas, hot or cold water, plumbing, heat or telephone service; or by removing a tenant's personal property from said unit; or by the use of force or threat of violence, injury or force to a tenant's person or property; or by any other act rendering a dwelling unit or any part thereof or any personal property located therein inaccessible or uninhabitable.

(Ord. No. 8-0-81; Ord. No. 8-0-12, (48-0-11(exh. B, § 5-3-12-1)), 1-23-2012)


Pre-Trial

Motions in Limine

Jury Instructions-Illinois Pattern Jury Instructions

Witness Lists

Statement of the Case


Trial

Voir Dire

Openings

Plaintiff’s Case

Defendant’s Case

Closings

Verdict



735 ILCS 5/9-121

Sealing of Court File

735 ILCS 5/9-121 (b)-Discretionary if the court finds that the plaintiff’s

action is sufficiently without a basis in fact or law, which may include

a lack of jurisdiction, that placing the court file under seal is clearly in

the interests of justice, and that those interests are not outweighed by the public’s interest in know about the record.



735 ILCS 5/9-121

Sealing of Court File

735 ILCS 5/9-121 (c)-Mandatory. The court file relating to an eviction

action brought against a tenant under section 9-207.5 of this Code

or as set forth in subdivision (h)(6) of Section 15-1701 of this Code

shall be placed under seal.


Post Trial

Vacate a Default Judgment;

Vacate a Judgment;

Vacate an agreed Order for Possession.


Order for Possession and the Cook County Sheriff

Orders must be filed with the Sheriff;

Eviction Schedule is available on line;

Defendant must provide orders staying the enforcement of any

order to the Sheriff’s Department;

Evictions are cancelled in extreme weather by the court.