Have you ever had a nightmare tenant who just couldn’t seem to pay the rent on time? My horror began with a seemingly nice family. But every month, they experienced some kind of financial crisis. At first, I was understanding. I said, “Sure, no problem. Just get the rent to me by Friday.” Then it got to the point where they were asking for more and more time. Finally, they just stopped paying altogether and I awoke to the realities of what it takes to evict a tenant.
The laws strongly protect tenant rights in Chicago, making evictions inordinately complicated and frustrating for landlords—even when you have just cause because the tenant hasn’t paid the rent. A successful eviction process relies upon full compliance with the letter of the law. Abiding by the strict timelines is especially critical, as the longer the process takes because of your missteps, the longer you go without rental income. Understanding what’s involved can help you manage your expectations and ease some of the anxiety.
Let’s take a look at the steps for evicting a tenant from your rental when they fail to keep up with the payments.
1. Determining Your Notice Requirements
There are different eviction notice periods, depending upon the type and duration of the lease. For non-payment of rent, a five-day written notice is generally required, but there are exceptions. A 30-day notice period is usually compulsory if you only have an oral lease agreement in place, if the lease is for less than 30 days, or if the lease terms are month-to-month. That said, you generally do not need to provide any notice to a tenant who has stayed beyond the expiration of their lease. In that case, you may proceed directly to Step 3.
2. Filling Out and Serving the ‘Demand for Rent” Notice
Residential evictions generally begin with serving the “Demand for Rent” notice to the tenant, and it is essential that you follow the required rules on content. The notice must at least contain:
- a description of the rental property
- the reason for the eviction
- the amount owed
- the date of lease termination
While you can find forms to download on the internet, they may not include the technical and specific language that you need. If the notice is not written properly, you risk a scenario where it may not be accepted by a judge when you finally get a hearing. You could also find yourself in a situation where a poorly written demand notice adversely impacts your ability to secure a positive legal outcome. It is best to discuss the notice requirements with your local legal counsel to ensure that your letter is enforceable.
ESSENTIAL: Be mindful of including the names of everyone living on your property—not just the tenants who signed the lease. In some cases, successful evictions have been thwarted because the sheriff will only remove persons listed on the lawsuit, while everyone else may be allowed to remain on the property.
Generally. the notice of eviction can only be served to the tenant in one of three ways. You can personally hand it directly to the tenant or a subtenant that is at least 13 years old. If that’s not possible, you may serve the notice via registered mail or certified mail. Beware, currently in Chicago, you are NOT allowed to serve the notice to the tenant by posting it on the door or otherwise leaving it in a conspicuous place.
Once the tenant is served, you need to file a copy of the notice along with a notarized certificate of service with the court clerk. In Chicago, you’ll head to the Richard J. Daley Center, Cook County’s First District Court.
IMPORTANT: If the tenant pays the full amount of rent due before the notice period ends, you must accept the payment and discontinue the eviction process.
3. Filing the Eviction Action at the Court
Once the required notice period has ended (or in cases where notice wasn’t required) and the tenant still has not paid, you can fill out a Summons and Complaint for Forcible Entry and Detainer. Then, if your local counsel advises you to move forward, file the complaint along with a notarized certificate of service affirming delivery of the notice with the court. This initiates the lawsuit against the tenant and you will finally receive a hearing date. But don’t hold your breath, because it can take several weeks to secure a hearing date. At the Daley Center, hearings are scheduled out at least two to three weeks, while surrounding districts can take even longer.
COMMON PITFALL: Do not file the complaint too early! If you have to abide by a five-day notice period, you may file the complaint on the sixth day after the tenant was served. If you file earlier, the eviction could be summarily dismissed in court and you will have to re-start the eviction process again at Step 1. Not only will this cost more time and money, your tenant will continue to enjoy a rent-free stay on you.
4. Serving the Tenant with the Complaint and Summons
After the complaint and summons are filed with the court, they must be served to the tenant—and that can only be done by a sheriff, potentially delaying the process even longer. To facilitate a smoother process, you should be prepared to provide the sheriff’s office with detailed information about how to best reach the tenant, such as:
- Accurate address. Failing to specify the exact address, including the correct number and zip code, can result in delays of service or even cause the sheriff to be unable to serve the tenant at all.
- Tenant’s schedule and habits. Let the sheriff’s office know when the tenant usually gets home from work, whether they keep potentially dangerous animals on the property, or if they have a criminal history. While not necessarily criminal, some tenants have a special talent for evading process servers and that is important for the sheriffs to know.
- Property particulars. If your property is in a gated community or has a doorman, you will need to make arrangements for the sheriff to enter and specify these directions in your request for process service.
If the sheriff is unable to serve the complaint and summons at least five days before the hearing date, it will have to be rescheduled. At this point, you will also have the option of requesting the permission of the court to use a private process server appointed by the court by filing an Alias Summons and Complaint, though this may require a new court date, usually 2-6 weeks out. Only after that will the court be able to schedule a hearing for the eviction action.
CRITICAL: If the tenant pays any amount of rent due before the complaint is filed and served, you must accept the money and end the eviction action. Or, if still desired, you can start the process over.
5. Attending the hearing
The hearing can usually go one of two ways. If the tenant doesn’t show up, you can thank your lucky stars that a default judgment will be made against the tenant. However, sometimes the tenant does attend the hearing. In this case, the judge will generally either hold the hearing that day or set it for another day—especially if the tenant requests a continuance so they have time to either prepare a defense or get an attorney to help them.
When you do finally get your day in court, you have the burden to prove that the tenant did not pay rent according to the lease. You must also prove that proper notice was served on the tenant, and that all court documents were filed appropriately. Things that will usually not be allowed as evidence to support your claim include statements made by others outside the court, and documents prepared by someone else (unless that person is also attending the hearing and is willing to testify).
You will also need to be prepared to address some of the typical defenses made by tenants at the hearing, including:
- They paid the rent within the notice period or you accepted some amount of money toward the rent before filing the Summons and Complaint. Proving the timeline is critical and can be difficult, especially if payment was made by cash or check.
- They did not receive the five-day notice. It helps to bring a friend to court with you who can testify that they witnessed you serving the notice, but even still, you should expect to spend extra time in court proving it.
- You failed to correct a hazardous condition, thereby breaching the Warranty of Habitability. In effect, this creates another legal dance between you and the tenant that could extend the eviction process even further.
- Your attempt to evict is retaliation for tenant complaints, tenant organizing, or otherwise exercising their legal rights. Again, this defense will only lead to more complex arguments, meaning more court dates and legal costs.
As you can see, if the tenant contests the eviction at all, you are likely to become mired in a convoluted jury trial that could stretch out for months.
6. Executing the Court Order
So, the judge ruled in your favor—but it’s not all said and done. The “Order for Possession’ ruling grants you the right to take possession of the property back from the tenant. Often, however, a judge will also simultaneously grant the tenant a “stay of enforcement” allowing tenants some more time to find a new place to live. At the end of that period, however, if you still cannot convince the tenant to leave the premises, you may have to call upon the sheriff to do so. This can take up to four months, since their Chicago office is generally backlogged.
IMPERATIVE: Be sure to check the sheriff’s website regularly to see when they plan to be at your property to remove the tenants. If you or one of your representatives are not available to attend the eviction, you will have to reschedule—and possibly wait another four months.
Evicting a tenant from their rental property may require the advice and guidance of a good, local real estate lawyer—which just adds to the financial obligations caused by a tenant that won’t pay the rent. As a HomeVestors® franchisee, I have a network of seasoned real estate investors to share their real life “been there, done that” experiences with me. Their input and guidance about the eviction process, along with some good legal advice from my attorney, was invaluable to me. I’m certain that this helped me to avoid months of hassle and significant legal issues that could have occurred if I hadn’t been aware of all the potential pitfalls in navigating the eviction process.
If you’re interested in learning more about the HomeVestors® franchise network, consider reaching out to a HomeVestors® representative to learn about the resources available to franchisees like me.
Each franchise office is independently owned and operated.
Image Source: Flickr CC User Ken Lund