Illinois Five Day Notice and Eviction

by | Eviction, Landlord and Tenant, Lease, Legal

If you are facing an eviction or looking to evict a tenant, you are probably somewhat familiar with the term five day notice.

In Illinois evictions are generally controlled by the Forcible Entry and Detainer Act. Under 735 ILCS 5/9-101 a landlord cannot forcibly remove you. Under Illinois eviction law a party must seek eviction through the courts pursuant to the Forcible Entry and Detainer Act. Pursuant to 735 ILCS 5/9-102, a party entitled to possession can bring suit when any other party:

  1. takes possession forcibly
  2. takes possession peacefully but possession is unlawfully withheld
  3. makes entry into vacant or unoccupied land without right or title
  4. under a lease, when a party holds possession without right after being notified of the lease termination.

These are some of the most common scenarios leading to eviction in Illinois.

When a tenant has a lease and the landlord wants to evict a tenant, the landlord must serve some kind of notice demanding immediate possession. If the landlord is evicting because of back due rent, the landlord must serve notice with a demand for payment. The tenant has five days from the date of the notice to pay all back due rent. 735 ILCS 5/9-209. Most commonly these are called five day notices or 5 day notices.

How are courts misapplying forcible claims? Courts are still holding that without a five day notice the court has no jurisdiction. That is incorrect. Pursuant to Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill.2d 325 (2002) a court’s jurisdiction is not dependent on statutory compliance. The Illinois Supreme Court ruled that a court’s jurisdiction stems from the Illinois constitution, not from a statute. Therefore, service of a five day notice does not grant the court jurisdiction nor does it rob a court of jurisdiction when notice is not given. Failing to serve the appropriate notice in Illinois may limit or prevent a party from evicting until notice is served; it does not impact whether a court can hear the matter.

In Illinois in order to evict a tenant a landlord must serve notice in order to gain possession and must serve a five day notice if the landlord is claiming any back due rent. If possession is not tendered and rent is not paid, a landlord may move to evict and seek a court order for possession and a judgment for back due rent. Lack of notice, however, does not prevent a court from exercising jurisdiction even though many trial judges still operate under the theory that without notice the court is unable to hear the case.

If you are a landlord or tenant seeking eviction in Schaumburg, eviction in Hoffman Estates, eviction in Streamwood, eviction in  Rolling Meadows, eviction in Bartlett, or eviction in Chicago, call our office to discuss your case.