The Five Day Notice
Any Chicago landlord worth his salt needs to have a blank “five-day notice” close at hand. In Illinois, a landlord may not commence an eviction proceeding unless the tenant fails to pay the outstanding rent within five days after service of a demand for payment. the statute that governs this process, 735 ILCS 5/9-209, mandates the inclusion of specific language in the five-day notice, and we at domu have incorporated that language into our own sample form. Chicago is notoriously tenant-friendly, and Cook County judges have been known to throw out eviction cases based on seemingly trivial irregularities in the five-day notice, so landlords need to ensure that the notice is complete and accurate.
A five-day notice must be served by (i) delivering a written or printed copy to the tenant, (ii) leaving a copy with someone age 13 or older who resides at the premises, or (iii) sending a copy to the tenant by certified or registered mail, return receipt requested. (735 ILCS 5/9-211). In instances where nobody is in “actual possession” of the premises, then posting the five-day notice on the front door will suffice. In other words, if the tenant is still residing in the apartment, but frequently out-of-town or otherwise difficult to serve, then he technically remains in "actual possession," and the posting of notice is not permitted. Illinois courts will dismiss eviction actions brought against tenants in possession when the five-day notices were posted on, or slipped under, the front door. It makes no difference whether the tenant actually received the notice or was fully aware of its existence. A failure of strict compliance with the rules of service will invalidate the entire lawsuit.
After the five-day notice has been served, the process server should complete the affidavit of service on the second page (which includes notarization) and return a copy to the landlord. (The second page of the copy served upon the tenant remains blank.)
Chicago landlords must then avoid the acceptance of any partial payment of rent if they intend to continue prosecuting an action for eviction. Although the Illinois statute mandates inclusion in the five-day notice of language notifying the tenant that the collection of rent after the filing of an action for possession “shall not invalidate the suit,” the Chicago Residential Landlord and Tenant Ordinance (Section 5-12-130(g)) provides that the acceptance of any rent by the landlord, with knowledge of a default, operates as a waiver of the right to terminate a lease.
It sure seems silly that a Chicago landlord should be forced to decline an offer of partial back rent if it wants to continue with an eviction action, but that’s the law in this tenant-friendly town. If a substantial partial payment from a perennially problem tenant is too good to refuse, the landlord has the option of accepting the partial payment and then filing a new five-day notice demanding payment of the balance. This strategy works best when an eviction action has not yet been filed, otherwise the landlord is required to dismiss the existing action and then file a new one (based on the new five-day notice), which entails additional cost and wastes precious time.
Of course, even a perfect five-day notice does not guarantee a successful eviction. A great many defenses remain available to tenants, the most common being the contention that the landlord has repeatedly accepted late payments of rent and thereby waived its right to rely on the due date set forth in the lease. As a result, landlords who have failed to remain vigilant about collecting the rent on time typically need to begin the eviction process by sending the tenant a letter demanding “strict compliance” with the terms of the lease, effective immediately. If the tenant fails to make the next payment of rent in timely fashion, the landlord may then serve a five-day notice and, if necessary, initiate an action for possession without fearing the assertion of a “waiver” claim.
There are hundreds of ways to get tripped up in the eviction process, so, when in doubt, call a lawyer. We at domu are especially fond of Cary Schiff, who specializes in representing landlords. Cary knows the in’s and out’s of eviction law like nobody’s business, which is why we didn’t publish this wonderfully edifying blog post until we received his blessing.