Why you need legal representation when served with a forcible entry and detainer lawsuit.
In this article, I am going to discuss what an eviction lawsuit is; and the proper legal steps for an eviction lawsuit. First, the court legal terminology for and eviction is called a Complaint in Forcible Entry and Detainer. In the state of Illinois, a landlord or property manager can evict a tenant based upon several reasons. Most evictions involve non-payment of rent. Other causes for eviction are violating some or more than one portion of the lease agreement. However, a tenant has legal rights afforded under the Illinois Civil Code of Procedure and has grounds to prove that the eviction is unjustified, or the eviction process was illegal. The tenant may subsequently delay the eviction from proceeding further in a court of law. If you are named as a Defendant in an eviction and are attempting to represent yourself, this could spell disaster for you. Evictions are a civil lawsuit and many defendants simply have no concept of the law and end up with a judgment taken against them, plus facing a Citation hearing; and possible wage garnishment or attachment of your bank account. Now is the time to contact the legal team at Gateville Law Firm. We are experienced forcible entry and detainer attorneys.
The Eviction Process in the State of Illinois
All forcible entry and detainer actions are governed by the Illinois Civil Code of Procedure and state court rules. Property managers and landlords must be fully aware and abide by these procedures in order to evict a tenant. Ignorance of the law will not excuse an illegal eviction in state court.
Non-payment of rent: If the tenant is a subject of an eviction for non-payment of rent or not paying the rent on time according to the terms and conditions of the lease agreement, the landlord or property manager is required to give the tenant a Five Day Notice to pay the rent (this is also referred as a “Notice to Quit” or “Notice to pay rent or Quit”). If the tenant does not pay the rent within the five (5) days as noted in the Five-Day Notice, then the property manager or landlord will begin with filing a forcible entry and detainer lawsuit.
If the tenant is subject to eviction for violating a portion or several portions of the lease agreement (having a dog in the rental property when no pets are allowed), then the property manager or landlord must give the tenant a Ten (10) Day Notice to move out. If the tenant does not move out of the property within ten days, then the landlord can proceed with filing a forcible entry and detainer action.
The property manager, landlord or the property manager/landlord’s attorney must file the forcible entry and detainer lawsuit, with the Circuit Clerk of the Court in the county where the rental property is located. Once the lawsuit is filed and the Summons is issues, the tenant will then receive a copy of the complaint and a summons from the Clerk of the Circuit Court, or by personal service, with a hearing (or return) date for the lawsuit. If the tenant chooses to contest the eviction, the tenant must file his or her Appearance and Answer, retain an attorney to represent the tenant and the attorney will file his or her Appearance and Answer to Complaint in Forcible Entry and Detainer Action.
At the court hearing, the tenant or the attorney representing the tenant will inform the court (judge) all the defenses the tenant wishes to contest the eviction. After carefully reviewing the complaint and the defendant’s answer, the judge will make a final decision about whether the eviction is lawful, whether the tenant has a basis for defense, grant immediate possession to the Plaintiff, when the tenant has to vacate the property, or set the matter for trial.
Tenant Defenses for Contesting an Eviction in Illinois
There are several legal grounds available to tenants who wish to contest a forcible entry and detainer suit. Below is a description of the most common:
A Landlord Attempting to evict a Tenant without a Court Order
In all Illinois counties it is illegal for any property manager or landlord to attempt an eviction of a tenant without a court order. This type of illegal eviction is often referred to as a “self-help” eviction. A self-help eviction can include such actions by the landlord as shutting off the utilities to the rental property, changing the locks on the door of the rental unit (illegal lock-out). If a landlord or property manager attempts to evict a tenant through one of these methods, without a court order, the landlord would become liable for any damages toward the tenant. This also includes the removal of the tenant’s personal property, in lieu of a court order.
The Landlord or Property Manager failed to Follow Proper Eviction Procedures
Landlords and property managers are required to follow all proper procedures for evicting a tenant. For example, the landlord or property manager cannot file the eviction lawsuit with the courts until the landlord or property manager has given the tenant a Five Day Notice, Notice to Quit, the proper amount of time has elapsed, (either five days or ten days) regarding the reason for the eviction. If the property manager or landlord fails to follow proper procedures in evicting the tenant (filing the eviction lawsuit too early), the landlord or property manager will have to start the eviction process all over again. Furthermore, the tenant can use this as evidence in court that the landlord or property manager failed to follow proper legal procedures as grounds for defense to the forcible entry and detainer cause of action.
The Tenant Has Legal Grounds for Non-Payment of Rent
Below are several grounds for defending a forcible entry and detainer lawsuit:
The Tenant Has Paid All Rent Due and Owing.
If the landlord serves the tenant a Five-day Notice to Quit for non-payment of rent, the tenant has the option of: Pay the amount of the rent in full; or move out of the rental property within five (5) days.
If the tenant pays the rent in full (including all applicable late fees) within five days after being served with the notice, the landlord or property manager is unable to proceed with an eviction lawsuit. However, if the landlord goes forth with filing an eviction lawsuit, the tenant can use the payment of rent during the five days as a legal defense with regard to the eviction lawsuit.
The Landlord or Property Manager has failed to make Repairs
Every residential lease agreement has implied conditions and promises that the rental property will be in good condition, is safe and sanitary. If the property is not fit for tenants to reside in, the landlord or property manager has a legal obligation to make necessary repairs to the property. There is no set housing standard in Illinois for rental property, however, all rental property must adhere and abide by all city, village or other local housing codes and ordinances, where applicable, and the property must be in good repair, sound, safe and sanitary. If the rental property is an apartment, the unit must have a working heat source. If the landlord or property manager has been notified by the tenant concerning needed repairs and the landlord fails to make the repairs, a tenant can use the landlord’s failure to make the necessary repairs as a defense against an eviction for non-payment of rent.
Retaliation by a Landlord due to Tenant’s Legal Actions
In the state of Illinois, it is illegal for any landlord or property manager to evict a tenant because the tenant has made a complaint to a government authority about housing code violation, or health code violations. Attempting to evict a tenant under this reason called an “act of retaliation”. If a tenant has made a good-faith complaint to a local, county or state government agency regarding the unsafe living conditions of the rental property, and the landlord attempts to evict the tenant, the tenant can use retaliation as a defense.
Housing Discrimination Violations of a Tenant
Under the laws and statutes of The Federal Fair Housing Act, it illegal for a landlord or property manager to discriminate against a tenant based upon: Race, religion, gender, national origin, familial status (including children under the age of 18 and pregnant women), and persons with a disability. The Illinois Human Rights Act prohibits discrimination based on the same characteristics and adds another characteristic: Sexual orientation. If a landlord evicts a tenant in violation of the Federal Fair Housing Act or the Illinois Human Rights Act, then the tenant has grounds for a discrimination action and defense against the eviction.
If you have fallen behind in your rent, before matters get out of control, contact your landlord or property manager and tell them what has happened and why you are unable to pay the rent on time. Work with your landlord or property manager on a payment plan to help you get caught up on any past due rent. In this case, silence is not golden. Also, every Illinois County has resources including emergency rental assistance programs. Many Illinois residents and families qualify for a county emergency rental assistance program.
If you have been served with a Complaint in Forcible Entry and Detainer and a Summons, do not go it alone in court. You have the right of representation. Call the legal team of Gateville Law Firm today. Call 630-780-1034 or via online submission.
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