Partial Payment after 5 Day Notice in Chicago

five day noticeThe first step in just about all evictions for nonpayment of rent is to serve a notice for non-payment of rent.  Unless the cure period is modified (or even waived in some jurisdictions), this is usually a five day notice.  Once the notice is served, the tenant has five days to make payment in full to avoid an eviction.

If the tenant tenders the whole amount of rent then due, the landlord must accept the rent.  If the tenant tenders less than the full amount of rent, can the landlord accept it?  Will the landlord have to serve a new five day notice?  As with everything in landlord tenant law, the answer is “it depends”.

The Illinois Forcible Entry and Detainer Act contains a provision that requires that a notice of termination of tenancy for nonpayment of rent include the language: “Only FULL PAYMENT of the rent demanded in this notice will waive the landlord’s right to terminate the lease under this notice, unless the landlord agrees in writing to continue the lease in exchange for receiving partial payment” in order for the notice to be valid.

Under Illinois law, a landlord can accept less than full payment without waiving the landlord’s right to proceed to an eviction unless the landlord and tenant agree in writing that a partial payment is a waiver of the right to proceed to an eviction.  This is pretty clear cut.

Unfortunately, many jurisdictions (such as Chicago) override the state law with their own municipal restrictions.  Section 5-12-130(g) of the Chicago Residential Landlord Tenant Ordinance provides that if a landlord accepts any rent whatsoever, within the cure period or not, after service of a notice of termination, the landlord waives the right to proceed to an eviction.  So, any landlord governed by the Chicago ordinance will have to issue a new notice of termination for nonpayment of rent after accepting any cash from a tenant.

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