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The "Five-Day Notice"

Every Chicago landlord needs to be able to pull a blank “five-day notice” out of the desk drawer at any time. In Illinois, a landlord may not file an eviction proceeding unless the tenant fails to pay the outstanding rent within five days after service of a written demand for payment. This demand for payment is what local lawyers call "the five-day notice." The statute that governs this process, 735 ILCS 5/9-209, requires specific language, 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 they serve is complete and accurate.

A five-day notice must be served in one of the following three ways: (1) by delivering a written or printed copy to the tenant, (2) by leaving a copy with someone age 13 or older who resides at the premises, or (3) by 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. Caution: If the tenant is still residing in the apartment, but frequently out-of-town or hiding out at his girlfriend's pad, then he technically remains in "actual possession," and the posting of notice will not be permitted. If certified mail doesn't work, you'll need to serve him in person. Judges will dismiss eviction actions brought against tenants in "actual possession" if the five-day notice was 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 will get the lawsuit thrown out of court.

After the five-day notice has been served, the person who delivered the notice should complete the affidavit of service on the second page (which includes notarization) and return a copy to the landlord. (This page remains blank on the copy delivered to the tenant.)

Chicago landlords should then refuse to accept any partial payment of back rent if they intend to continue moving forward with an eviction action. This is really tricky, so be careful. Illinois law (not Chicago law, but Illinois law) allows a landlord to accept partial payments of back rent without invalidating the five-day notice or otherwise destroying an already-filed eviction action, provided that the five-day notice includes specific language indicating that only "FULL PAYMENT" of all past due rent will "waive the landlord's right to terminate the lease." So we've included that language in our sample five-day notice. On the other hand, Chicago law, as embodied in Section 5-12-130(g) of the Chicago Residential Landlord and Tenant Ordinance, provides that any acceptance of partial back rent by a landlord will operate as a waiver of the right to recover all remaining unpaid rent described in the five-day notice or sought in the eviction action (if it's progressed that far). In other words, in Chicago, a landlord who accepts any partial payment of back rent has to start all over again with a new five-day notice and a new lawsuit.

Yes, it sure seems silly that a landlord should be forced to decline an offer of partial back rent if it wants to continue with an eviction, 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 payment and filing a new five-day notice or turning down an offer that might be too good to refuse, considering all additional future headaches. If an eviction action has already been filed, a landlord who accepts a partial payment will be required to dismiss the lawsuit and start all over again with a new five-day notice.

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 hopefully wonderfully edifying overview until we received his blessing.