Free 5 Day Notice and Eviction Notice

Free 5 Day Notice and Eviction Notice

Covid-19 Note:  In March 2020, Governor J.B. Pritzker issued a temporary moratorium on evictions in Illinois to avoid the spread of the novel coronavirus, Covid-19.  The eviction moratorium is in place until January 9, 2020 subject to further extensions.  Additionally, on September 1, 2020, the U.S. Center for Disease Control issued a temporary moratorium on evictions through January 31, 2021, that applies to renters who certify to their landlords that the tenant has sought government assistance, meets certain income maximums, is unable to pay the rent due to a substantial loss of income or extraordinary medical expenses, that the tenant is using best efforts to make partial payments, and that the eviction would leave the individual homeless. 

In Chicago, eviction notices are called a "5 day notice." In Illinois, a landlord may not file an eviction process unless the tenant fails to pay the outstanding rent within 5 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 5 day eviction notice, so landlords need to ensure that the notice they serve is complete and accurate.

A 5 day eviction 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.

In Chicago, any notice of eviction on the basis of nonpayment of rent must include a notice informing the tenant of her/his/their rights under the Chicago Covid-19 Eviction Protection Ordinance.  This notice explains that under the new Covid-19 Eviction Protection Ordinance, tenants have an additional seven days to try to negotiate a payment plan with the landlord before the landlord is entitled to file a court case for eviction. The city has provided a template for tenants who seek to benefit from the additional time to negotiate with their landlords.

After the 5 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.)

Ordinarily, pre-Covid 19, Chicago landlords should then refuse to accept any partial payment of back rent if they intend to continue moving forward with an eviction process. 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 5 day notice or otherwise destroying an already-filed eviction action, provided that the 5 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 5 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 5 day notice or sought in the eviction action (if it's progressed that far) -- except that the new Covid-19 Eviction Protection Ordinance encourages landlords and tenants to work out a payment plan. 

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 5 -day notice.

Of course, even a perfect 5 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 5 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 Chicago eviction process, so, when in doubt, call a lawyer.

The general information that Domu provides about Chicago landlord tenant law is not intended as legal advice.  The answers to the hypothetical questions posed above are provided as general education. Domu endeavors to provide accurate information, but the law is subject to change, and Domu is not a law firm or provider of legal services. Questions about your particular leasing situation should be directed to a lawyer.