CAN A LANDLORD TURN OFF THE UTILITIES IN AN EFFORT TO EVICT A TENANT IN ILLINOIS?

 Posted on November 22,2022 in Residential Landlord Evictions

ILLINOIS EVICTION ATTORNEYS EXCLUSIVELY FOR LANDLORDS

A common question among landlords is whether they may turn off tenant’s utility service. The simple answer is “No.” The term “landlord” including the owner of the building, the owner’s agent, and the lessor of a building. 765 ILCS 735 1.1. This answer may be different if the tenant and the landlord agreed in a written residential lease for the tenant to provide for utilities such as gas, electricity, garbage, and/or trash service. 

Turning off the utilities mean that the Landlord requested that the service provider turn off the utilities to constructively evict tenants. In the alternative, the landlord cannot refuse to pay the bill and allow utilities to be shut off. Unfortunately, the last few years have been tough for landlords because a landlord’s ability to swiftly use the corrects to force a tenant to pay their rent and utilities has been limited. There is an exception for temporary utility shutoffs in case of emergencies such as gas leaks, fire or upon a seven (7) day written notice to each affected tenant for repairs or rehabilitation. 765 ILCS 735 1.4/Rental Property Utility Service Act.

Tenant Responsibility for Utilities

When a residential lease requires a tenant to be responsibility for utilities and a tenant fails to pay the utility bills and a shutoff occurs is not subject to the Rental Property Utility Service Act. In this instance, the tenant is responsible for restoring tenant and the landlord is not liable nor required to assist the tenant to restore utility services.

Landlord’s Reasons for Eviction

In our experience, a landlord in Illinois seeks eviction of a residential tenant for the following reasons:

• A tenant is behind on rent or refuses to pay rent

• A tenant breaches a rule of the residential lease such as by having “unknown occupants,” which are not listed on the lease or has pets in violation of the terms of the lease

• Tenant is damaging the rental unit in a manner, which causes the landlord to remove the tenant(s)

• Landlord wants to sell the real estate property and desires to terminate a month-to-month lease

• A property owner wants to evict a former girlfriend or boyfriend (or partner) or other person(s) for any legal reason

• A landlord wants to terminate a written lease or oral lease

• A squatter moves into one of the units of the rental property and landlord desires to evict the squatter

The above reasons for evictions are multiple reasons why landlords or real estate property owners want to start the eviction process. Property owners often wonder whether their rights are limited when there is only a “oral lease” versus a written lease. The answer is “No” with exceptions. A landlord that rents a unit or units with a tenant may seek eviction services despite having a written lease. The landlord or property owner may not seek reimbursement of reasonable attorney’s fees when there is no written lease requiring the breaching party to be responsible for the other party’s reasonable attorney’s fees.

Proper Procedures for Eviction in Illinois

A landlord, real estate investor, and/or property manager should seek out legal remedies to evict a tenant. We understand that mom and pop landlords are smaller and do not have the financial resources of well-established commercial landlords. Despite these limitations, the family-owner investor or landlord must seek out legal remedies to properly evict a tenant in Illinois. We will discuss these eviction procedures in this article.

This article is limited to residential evictions, but there are similar rules for commercial evictions. An eviction is the process of getting a court order under current rules to properly evict a tenant for a legal reason.

Two Step Process to Evict Residential Tenants in Illinois

1. Preparation and Delivery of Legal Eviction Notice(s)

The first step in the residential eviction process is termination of the rental tenancy termination. Simply put, this means that the landlord must give proper notice to terminate the rental tenancy of the tenant(s). This process is required before the landlord (or its’ agent) may commence eviction removal services such as a forcible entry and detainer action in court. There are four major eviction notice types in Illinois for eviction of residential tenants.

1. 5-day Eviction Notice

2. 30-day Eviction Notice

3. 7-day Eviction Notice

4. 10-day Eviction Notice

5. 90-day Eviction Notice

5-day Eviction Notice

A five (5) day eviction notice is the most common type of eviction notice in Illinois. A 5-day eviction notice is a non-payment of rent eviction notice. This notice means that the tenant has five (5) days to pay the back-owed rent. The five-days includes weekends. The five-day requirement is a calendar-based time. The written notice should at a minimum include the following information:

• The amount of rent due that must be paid within 5 days

• Address of the property including the unit number (if applicable)

• The notice shall state that only full payment of the rent will be accepted. No partial payments will be acceptable.

• The lease tenancy will terminate upon the expiration of the 5-day period (or the landlord has the right to terminate the lease)

• Where payment shall be made and the manner of payment

As a service, Landlord Evictions, LLC assists landlords, property owners, and property managers with the preparation and delivery of 5-day notices. Standard five-day notices may be “googled” and there are accepted five-day forms that the landlord can use.

30-day Termination Notice

A 30-day eviction notice is a type of eviction notice terminating the written lease or a month-to-month lease. Landlords and property owners often call, and the written lease has been extended automatically on a month-to-month basis after the written lease expired. The written lease often expired years ago and neither the tenant nor landlord cancelled the lease. In the alternative, we hear stories from landlords that gave verbal terminations of the written lease (or by text or email), which were inconsistent with the legal requirements to give a landlord notice. We will go into legal methods to give notice in another section of this article.

The purpose of the 30-day notice is to notify the tenant that the landlord (or its’ agent) desires to terminate the lease term of the tenant (after the expiration of a period). The landlord may give greater than 30-day notice, which is recommended in many instances. In our experience, a sixty-day notice may give a tenant more time to prevent homelessness and find suitable housing. Note, that if we are hired, we will give the tenant the minimum period required under the law unless the landlord has contrary instructions. Simply put, the minimum notice requirement in the Illinois is 30-days. However, the landlord should be aware that certain municipalities in Illinois may have a higher standard than 30-day notice. Consult your qualified eviction attorney for that counsel.

Here are examples where a 30-day notice is appropriate:

• Termination a written lease that is expiring (at a specified term)

• Termination of an oral month to month lease (which is assumed by Illinois law) such as an oral lease or a boyfriend/girlfriend situation

• Holdover tenant where there was a written lease and the tenant remained beyond the expiration date of the written lease

The 30-day requirement does not mean 30-days from the delivery of the eviction notice. 30-days mean 30-days from the next rental period (which is often the 1st of the month). For example, delivery of an eviction notices on November 20, 2022, will begin the 30-day period on December 1, 2022 (and 30 days from this date).

After the 30-day period has expired, the landlord has a right (but not obligation) to terminate the written (or oral Lease) agreement even though the written lease agreement may end on April 1, 2023 (or some other date). The right to terminate the written or oral lease is the landlord’s decision (not the tenant’s decision). Therefore, any written lease requirements will be invalid after the 30-day notice period has expired if the landlord determines to cancel the contract. In conclusion, the 30-day notice is the second most common eviction notice in Illinois per our experience.

7-day Eviction Notice

A 7-day eviction notice is appropriate when a tenant is renting on a week-by-week basis. A landlord must give the tenant in these circumstances a 7-day notice, which terminates the weekly rental tenancy. Examples of a 7-day notice including staying at a hotel or temporary housing situation. Again, the landlord has a right to seek eviction proceedings after the first seven-day notice is served.

10-day Eviction Notice

A 10-day eviction notice is considered a non-compliance notice. A non-compliance notice is a notice where a default has occurred. A default has occurred in a written lease agreement, which required to do something (or refrain from doing something) and the tenant(s) has violated a particular section of the written lease. 

Examples of non-compliance issues include the following:

• A tenant(s) is a nuisance to other tenants or has committed a criminal act prohibited by the terms of the written lease

• Property damages has occurred, which is prohibited in the written lease

• The tenants have failed to allow the landlord to inspect the property as allowed under the terms of the lease

• A pet(s) has moved into the rental premises despite a prohibition against pets

• The tenants have moved in tenants not on the written lease (or not allowed) pursuant to the written lease

• The tenant(s) have smoked in the rental unit against the terms of the written lease

• Any other reason that the tenant has violated the terms of the written lease

The 10-day notice shall state the reason(s) for breach of the rental tenancy. In certain circumstances, the landlord should give the tenant(s) a period to remedy the breach (or face eviction) or sometimes the tenant will seek eviction proceedings against a tenant if they have not moved out within 10-days. In our experience, 10-day notices are tricky, and you should consult an attorney before proceeding. 10-day notice violations are more likely to go to trial and be subjective (in our experience).

In summary, the four eviction notice types are 5-day; 7-day-10-day; and 30-day eviction notices. After the period has expired, the landlord may file an eviction lawsuit or otherwise known as a forcible entry and detainer action at the local courthouse where the property is located (and the county).

90-day Eviction Notice

Foreclosure cases require a 90-day notice to tenants, which often are unknown occupants. Generally, the foreclosure court will give an order of possession, which is for named parties on the mortgage lawsuit. The 90-day notice is for renters that are being evicted by the mortgage company or real estate purchaser at real estate auction. 

Foreclosure of residential real estate includes proceedings that are commenced and pending and where there was a bona fide lease was entered into or renewed (or was commenced after the bona fide lease was entered into or renewed.” 735 ILCS Section 5/15-1225.

Foreclosure Process in Illinois for Evictions

Under Illinois mortgage foreclosure law, when a property is foreclosed on the purchaser is required to make a “good faith effort” to identify the tenants and serve them written notice of the foreclosure. (see 735 ILCS § 5/15-1101). 

According to blog article titled “Real Estate Auctions, Foreclosures, and Evictions 101”, the 90-day notice must provide occupants with information regarding the foreclosure and change of ownership as well as contact information of whom purchased the real estate property. The notice should do the following:

The notice may be served by first class mail, or served to all parties in possession of the property by delivering the notice to someone who lives at the home and is at least 13 years old (see 735 ILCS § 5/1508.5(a)). If a purchaser does not provide this notice to the mortgagee in possession of the premises, he is not allowed to collect rent or terminate the tenancy (see 735 ILCS § 5/1508.5(d)(i)). See http://landlordevictionsllc.com/our-blog

In summary, the 90-day notice must be delivered to the tenant (or unknown occupants) before a real estate auction or landlord (or mortgage provider) may commence eviction proceedings.

Methods of Service of Process in Illinois

1. Personal Service of Eviction Notice

The next step after preparation of the eviction notices is delivery of the eviction notice(s). There are two primary methods of service of process in Illinois. The first method is my personal service, which means that the landlord or its’ agent (over the age of 18 years of age) personally handed the eviction notice to the tenant(s). 

Service of process is a tricky area because there are a lot of grey areas of the law. We will not discuss these grey areas of law. You should consult an eviction attorney in case you have questions. Again, the first method of service is personal service. Generally, a landlord or property manager or process server hands an eviction notice to the tenant(s). 

Personal service in Illinois is defined as leaving a copy of the eviction notice with the person or family member of the household (that resides at the property) that is 13 years of age or higher. Service of process on a private corporation or LLC is by leaving a copy of the eviction notice with its’ registered agent of the corporation or LLC. 

In summary, personal service is a method of service of delivery eviction notices by hand (or by personal delivery). The tenant must not accept the delivery, but the landlord (or its’ agent) must have attempted to hand deliver the eviction notice to the tenant(s). The landlord or its’ agent may not place the eviction notice on the door. There may be exceptional circumstances where this is warranted. Consult your qualified eviction attorney for further guidance here. 

An affidavit of service should be completed by the agent (or private process server) or landlord. The purpose of the affidavit of service is to swear under oath when, how, and who received the eviction notice and the landlord should have a copy of the eviction notice handed to the tenant(s).

Landlord Evictions, LLC will prepare an affidavit of service for landlords or property managers that have served an eviction notice. We ask for the following information:

• When was the eviction notice delivered (date and time or approximate date in the worst-case scenario)

• Describe the individual who received the notice (such as approximate height, weight) and time of delivery of the eviction notice

• Note, whether you know the person or persons to whom the notice was given.

2. Certified Mail or Registered Mail

Delivery by certified mail or registered mail must be with signatured requested. The only way this method is effective is when the tenant or family household member over 13 years of age have signed for the certified mail or registered mail. The registered mail or certified mail slip must request “signature requested.” Simply mailing the eviction notice by certified mail or registered mail is insufficient under Illinois law. You must mail the eviction notice by this format (if you desire this format). The postal carrier will have the recipient sign a green postcard as proof of delivery. You must keep that green postcard (or have a copy that may be generated) to proof service of process. The postcard will be mailed back to the send with proof of service of the tenant(s).

Filing an Eviction Lawsuit (or Forcible Entry and Detainer Action)

The next step in the residential eviction process is filing an eviction lawsuit or otherwise known as a “forcible entry and detainer action”.  The eviction lawsuit or complaint shall describe the relief that the Plaintiff (or Landlord or its’ agent) desires such as a judgment or payment of back-owed rent plus reasonable attorney’s fees and court costs (or possession only). In an eviction lawsuit, there are two types of relief:

• Money Damages (or unpaid rent plus late fees plus attorney’s fees and court costs (if applicable)

• Possession of the Property (Landlord wants the property back as soon as possible)

The landlord may seek a complaint which includes relief for money damages and possession of the property or just possession of the property back (alone). The benefit of possession only is the price charged by the county courthouses is cheaper. In many instances, the landlords want to seek possession of the property and money damages. 

Summons and Complaint

The first step in the residential eviction process is filing of the complaint and summons. The purpose of the summons is to inform the defendants and unknown occupants of the eviction lawsuit. The summons must be delivered by the Sheriff’s Office or an authorized court officer such as a private process server that is authorized to deliver court paperwork in the county where the case is located. The complaint shall be served upon all the Defendants which shall include the eviction notices, affidavits of service, and/or any written leases (which impact the eviction case). In summary, here is Illinois Supreme Court Rule 139:

Rule 139. Practice and Procedure in Eviction Cases. (a) Applicability of the Rule. This Rule supplements, but does not replace, the requirements set forth in article IX of the Code of Civil Procedure (735 ILCS 5/9-1 01 et seq.) and applies only to eviction actions filed on or after the effective date of July 17, 2020. (b) Supporting Documents for Eviction Complaints. (1) At the time of filing, the plaintiff shall attach a copy of the eviction notice or demand upon which the action is based, including any affidavits or other proof of service, to the eviction complaint. If the plaintiff does not have the eviction notice or demand, the plaintiff may attach an affidavit instead, using the standardized form approved for use by the Illinois Supreme Court. (2) When an eviction action is based on a breach of a written lease and brought pursuant to section 9-210 of the Code of Civil Procedure (735 ILCS 5/9-210), the plaintiff shall also attach a copy of the lease, or the relevant portions of the lease, to the eviction complaint at the time of filing. If the plaintiff does not have the lease or if there is no written lease, the plaintiff may attach an affidavit instead, using the standardized form approved for use by the Illinois Supreme Court.

In summary, the eviction complaint at the time of filing must include a copy of the eviction notice(s); affidavit of service of the eviction notice(s) in the complaint or by a separate affidavit that is attached to the complaint (or supplemental to the complaint). The Illinois Supreme Court has provided a standardized affidavit at http://www.illinoiscourts.gov/documents-and-forms/approved-forms/ This web address has standardized statewide forms, which are approved by the Illinois court system.

First-Court Date of the Eviction Court Date

At the first court date, the Illinois court will determine whether the court has jurisdiction to hear the case. Jurisdiction to hear the case means that proper service of process was served on the Defendant(s) and Unknown Occupants. Unknown Occupants should be included as a Defendant in an eviction case.

Depending on the venue and county (if jurisdiction is met) the parties (Judge or attorneys) will either order mediation; enter an agreed order; and/or set a trial date. Each county and Judge have different rules, which follow this format. 

Mediation and Agreed Orders in Eviction Cases in Illinois

The purpose of mediation is to seek a resolution of the case by compromise for the landlord and tenants. Mediation is often successful. An agreed order is a compromise by the parties (or the attorneys) that resolves the eviction case. The agreed order generally will include a move out time by the Defendants (tenants and unknown occupants) and/or entry of a judgment (or some other relief which is beyond the scope of this article). Agreed orders are beneficial to all parties because they save money, generally include a move out time for the residential tenants and provide the property back to the landlord as quickly as possible (allowed in the compromise or under Illinois law).

Illinois Eviction Attorneys for Landlords Exclusively

In conclusion, the filing of an eviction complaint and court proceedings in eviction complaint require expert legal advice by an experienced eviction attorney. At Landlord Evictions, LLC, we are experienced in eviction and forcible entry and detainer cases involved in the following counties:

• DuPage County

• Will County

• Kendall County

• Kane County

• LaSalle County

• DeKalb County

• Suburban Cook County Only

• Grundy County

• Livingston County

• Kankakee County

We swiftly remove unwanted tenants through the eviction process. We have a two-prong process. We will prepare the eviction notices and have a third-party (not affiliated with our law firm) serve the eviction notices and prepare an affidavit of service (for court purposes) proving service of the tenant(s). 

We also file eviction cases in the counties above in the State of Illinois removing unwanted tenants. In some instances, we will counsel the landlords on seeking Illinois rental assistance back-owed rent relief (if the government program is applicable). 

Call Your Illinois Eviction Lawyers Today at 630-780-1034

Call Landlord Evictions, LLC at 630-780-1034 (or email us at the online form) and speak with a qualified eviction staff member (or attorney) that answers your questions over the phone about the Illinois eviction process (in the county where your property is located). We provide valuable legal services to Landlords Exclusively that provide the following benefits:

• Answering general eviction related questions (related to landlord’s situation (or their agent’s questions)

• Hassle free engagement of attorney over the phone without coming into an office

• Delivery of the eviction engagement letter via DocuSign where Landlord (or its’ agent) can sign via text message and/or email service

• Landlord will not have to appear in open court (unless there is a trial date)

• Regular updates about the eviction process (and court proceedings)

• Obtaining money judgments and/or assistance in collecting back-owed rent in certain situations

• An intake-staff member (or lawyer) that takes your phone calls and/or sits in an office daily to cost-effectively handle your pleadings and questions in a manner that minimizes your out-of-pocket expenses (including unpaid monthly rent)

• A second attorney handles all court dates to allow at least one attorney or staff member to handle the legal paperwork to move cases quickly and cost-effectively for landlords (or their agents).