Refresher on evicting a family member in Illinois

evicting family members in IllinoisI have discussed roommate, guest, and family member evictions in the past, however, based on the number of recent questions I receive about Illinois evictions of family members and close relatives, I thought a refresher might be in order.

So, you let your grandson move in to your home in Addison, Illinois after his last stint in rehab and he has now relapsed and is back on drugs and living in your basement with his girlfriend?  You let your cousin move in to your Norwood Park bungalow when he lost his job and now he won’t leave?  Your daughter just turned eighteen and won’t listen to you or your spouse and she refuses to pay rent and doesn’t plan on leaving your Park Ridge home any time soon?  You let your sister and her two adult kids move into the second floor of your Chicago two flat “just until she got back on her feet” and that was three years ago?

Do you have to go through the (horrible, costly, and time consuming) Illinois eviction process to get rid of these family members?  Yep.

But they never had a lease!  Do you still have to evict them? Yes sir.  If they have established a tenancy, they are not trespassers,  They may be relatives and they may not have ever paid rent, but at some point you voluntarily let them stay and when you did that, you created a tenancy.  If they get mail at the property, have a driver’s license with the property address on it, keep their things at the property, have a key to the property, sleep at the property regularly or semi-regularly, or just plain claim to live there and you permitted it, then they likely have a tenancy.  (Of course, all fact situations are different, so you always want to consult a landlord on this point).

Well, they never paid rent.  Do you still have to go to court to get them out? Absolutely.  Your eviction is a single action for possession and rent is not usually at issue.  (Usually, it is lifestyle, courtesy, house rules, and other non-monetary factors that are the underlying cause of a family member eviction.)  The fact that rent was never paid is totally irrelevant.

Can you just “change the locks and lock those family members out?  Not at all.  That would be illegal.  It would probably give your relative a nice fat lawsuit against you!

Can’t you call the police to throw them out as trespassers? Nope.  The police are unlikely to help.  They don’t want to be sued for a wrongful eviction.  That’s what would happen if they dispossessed someone with a tenancy.  The police deal with criminal matters, not civil matters.  Trespass is criminal.  Eviction is civil.  Someone with a tenancy is not a trespasser and the tend to police error on the side of caution when its unclear.  You could try the police, but I doubt you will have much success.  They typically don’t get involved in the middle of a family member dispute unless a criminal act (like an assault or battery) takes place.  In fact, there are times when someone who’s been locked out can get the police to force their way back in to the property!

Are you telling me that in America in 2013, I don’t have control over who can be in my home even when they don’t pay?  That’s what I’m telling you.  It is a fact.

In most circumstances, the family member is occupying the property under an oral month-to-month tenancy.  Usually, an Illinois 30 day notice is the proper method for terminating such a tenancy.  An eviction of a family member would be handled just like any other eviction in Illinois under the forcible entry and detainer statute.  Serve the notice.  Wait the statutory time period.  If the family member does not move, file an eviction case.  Obtain service of process.  Have a trial.  Get an order for possession from a judge.  Wait for the county sheriff to come out and evict the occupant.

The eviction of a family member is always a bad situation.  Obviously, it makes sense to make an attempt to avoid the legal system if possible.  After all, a family-member eviction involves a relative!  The legal system is not a fun place and is not an ideal place for family members to settle disputes.  Nonetheless, sometimes there is no choice but to bring an eviction action.

There is nothing particularly special about the fact that the defendant is a relative that would make the case “faster” or “more special” in a judge’s eyes than any other eviction.  However, relative evictions can be more complicated because of the emotions of the participants and because sometimes the facts can be convoluted (was there a lease? did they pay rent?) and this can actually make a family member eviction more tricky than the average eviction.

It makes sense to try to keep a level head and to conduct the eviction in a “businesslike” fashion to keep problems to a minimum.  Don’t let things get out of hand and be sure to involve the authorities (and possibly get an order for protection) if things get violent or dangerous.  An eviction attorney can sometimes act as a buffer between the property owner and the relative.  Always consult with an experienced eviction attorney when facing such a situation.

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27 Responses to Refresher on evicting a family member in Illinois

  1. Pingback: Roommate, guest, and family member evictions in Illinois | chicagoeviction.com

  2. VSL says:

    There is very little information on Clear and Present danger evictions. If abuse is noted and the police are often called, can a landlord issue a three day notice of tenancy termination and proceed to go to court on that fourth day? I an also referencing the Illinois statute on domestic violence.

    • Richard Magnone says:

      While we don’t commonly call them “Clear and Present danger evictions”, I suspect you are referring to the Illinois Safe Home Act. Landlord’s generally don’t use this law to evict. Instead, the law is for tenants and its 3 day notice provision particularly is usually used as an affirmative defense in a landlord’s action for rent.

  3. Chris says:

    Can I give my sister a three day or five day notice when she has never had a lease,has never paid rent nor any other bills? She does have illegal income that she does not of course report that would allow her to move. I have lost my house in a tax sell,and must try to sell it within the next 3 months to avoid having to sell it at a great loss. She is aware of this and refuses to leave without being evicted which will take me past the court process of a 30 day notice timeline. She and her children have made my life a living hell .She has lived with me for 5 years.

    • Richard Magnone says:

      Chris, you definitely have a difficult situation. When an occupant is a tenant (meaning the property owner has allowed the occupant to establish a tenancy) but there is no lease, in Illinois, absent some other law or basis for eviction, a 30 day notice is usually necessary to terminate the tenancy.

      A 5 day notice is for the breach of a the obligation to pay rent in an oral or written lease. You indicated that there has never been a lease and your sister never paid rent. She can’t breach an obligation she does not have.

      Obviously, situations like this might have more complex facts that I am unaware of, so you cannot rely on this as legal advice. Do consult an attorney before acting.

  4. Kathy F says:

    This law must be fairly new. I was a roommate back in the 90′s and early 2000′s. At that time, a property owner or primary lessee could evict a roommate for no reason at all. The police COULD be called to remove the tenant, and the eviction could be immediate. If you were a roommate whose name was not on the PRIMARY lease, or you did not have an official sub-lease, you best have a reliable contingency plan. I was fortunate to have a great roomy, but I suspect this law is an over reaction to a situation in which a lot of roommates were abused.

    • Richard Magnone says:

      My experience goes back to about 1996 and this was the state of the law at that time. The vast majority of protectionist tenancy in today’s landlord tenant law is, unfortunately, the result of years of landlord abuses on tenants.

  5. Brynn P says:

    As a primary tenant, can I evict my roommate? I have been living in the apartment for the past few years without a lease and I allowed my sister to come live with me last year. Lately she hasn’t been paying rent and she is also causing drama so I want her to move out. I don’t want the landlord to get involved because I want to continue living there.

    • Richard Magnone says:

      I would need to know a lot more facts about how the roommate came to be a roommate before I could even begin to answer.

  6. JNR says:

    What if I’m the landlord and I want to evict both the tenant named in the lease and his or her family member? Assuming I’m not receiving rent, do I need to serve a a 5 day notice on the named tenant and a 30 day notice on the family member?

    • Richard Magnone says:

      I’m not sure I have enough facts about the family member and how they got to be there. That would alter the answer.

      • JNR says:

        The family member is either a husband or boyfriend and he has lived there for several years, but has never been named on the lease. There also are two children living at the place. I know them all, but have allowed them to live there with only the wife/girlfriend named on the lease. Up until recently, there were no issues. I’m trying to determine what notice I need to send to the adults for lack of rental payments–I assume a 5 day for her, but since he’s not an ‘unknown occupant,’ I suspect a 30 day to him?

        • Richard Magnone says:

          Only the tenant named in the lease may be served. If the husband and adult children are merely “allowed” occupants under the lease, the adults need to be named in the complaint (and served) but only the tenant needs to be served a notice.

  7. CLF says:

    This is a little off the subject, but my adult child will not move. She does not pay rent but currently shares the bills. So when I sell the house and give possession of the house to the buyer and have moved all of my possessions , if she still will not vacate, is it my problem or the buyers? Is she trespassing at this point?

    • Richard Magnone says:

      You need to discuss that concept with your real estate attorney. It is possible that your buyer is not taking subject to existing leases and tenancies and you might have a default on your contract.

  8. MaryAnne says:

    I’ve got a question for you. My daughter holds a shared apartment lease in Chicago. My husband and I go to visit once a month for a few days. We made the landlord angry when we insisted he remove his things from the house. (He was keeping two closets full of his things and had left paint cans, etc. on the porch.)

    Anyway. Now the landlord says my husband and I can only stay for one day. My daughter’s lease says we can only stay for one night at a time? How many nights are considered “occupying” the residence. The lease states that she and the other 3 girls are the only occupants but they can have up to 12 guests.

    • Richard Magnone says:

      MaryAnne, that’s a good question and you’re going to have to ask it of a tenant’s rights attorney. We represent landlords in evictions and try to limit the topics discussed on this website to general, eviction-related topics from the landlord’s side. Because I have not seen the lease and do not know all the facts and because we are not representing you (or your daughter), I can’t provide any advice on this one. Sorry.

  9. Jim says:

    I have a very complicated issue. The house I reside in was purchased more than 16 years ago by my Aunt with my name on the mortgage. My parents and 1 sibling lived in the house with my Aunt. 3 years later My Aunt & Father passed away. I moved in to pay the mortgage. After a while I had my Aunts name taken off the mortgage and mine is the only one. Along the way my sibling moved out & another moved in. My Mother has moved out more than 9 years ago. I have remained and so has one sibling. I made all mortgage & bill payments over the years. Everything is in my name and there is no will. Now when the property gets sold the money will be divided 4 ways. My 1 sibling paid me monthly rent payments over the years. Sometimes late and sometimes not at all. He would work on and off but not very dependable. I would always cover him. He did not pay anything for more than a year. He has since left for a while and is working out of state. But refuses to give up residency here. I want him to move all his belongings out. But he refuses because he claims he is part owner of the property. I have paid for all upkeep and maintenance. Can I evict him?

    • Richard Magnone says:

      Jim, I don’t know. You have a mess of a factual scenario there and all of that would have to be understood before you could determine any next steps.

  10. "Catherine" says:

    Richard, thanks for posting this great article and responding to comments. Like one of the commenters above, I have a 20yo daughter who is a full time student and has a part-time job. She spends 100% of the money she earns on herself, and expects a small allowance from us. She has never paid rent or contributed in any way to household expenses. We pay her college tuition and board, the insurance and rent on her car, and her health co-pays. Btw we live in Lake County.

    In return she refuses to comply with any household rules, rarely listens to requests to clean up after herself, turn down her music, etc., unless we get really heavy with her. She leaves trash around the house, regularly leaves the front door unlocked, comes and goes when she pleases and is verbally and sometimes physically abusive to her older cognitively disabled sibling. She helps herself to our alcohol (she says this is legal with our permission, but even if she doesn’t have our permission she goes ahead). We already have one domestic recorded for the time I successfully tried to prevent her going off in her car when she’d been drinking and she started hitting me. She also has a suspended sentence for underage consumption.

    Naturally all of this behavior causes great stress and turns me into monster mom when I’ve had enough (she knows exactly how to push my buttons). We’re clearly at the point where she needs to leave home and we need to revise our overly generous financial support of her; we’re prepared to do this on a generous timetable by giving her until the summer vacation to make her arrangements.

    My question is, where do we go first for counseling and support? I understand the legal steps to be taken, but given the amount of verbal and physical fireworks that happen when we try to deal with her ourselves, I feel that we need an impartial third party to help us deal with the situation in the calmest possible way. I don’t want the situation to become acute again and I would like to serve an initial notice to quit in early 2014. A complicating factor is that I need to be out of the country in February and I am afraid for her sibling, who will be alone in the house when my husband is out. I would prefer to be able to change the locks but from what you’re saying it doesn’t seem that’s legally possible. Can you advise me on that point?

    • Richard Magnone says:

      Where to go for support? Well, you are correct that the “legal system” for evictions is not a place that seeks to find collaborative solutions. That said, I am at a loss in terms of directing you to an appropriate resource. Sorry. From the rest of your email, this is certainly a serious matter and should be dealt with post-haste as the legal process, if you must resort to it, is time consuming.

      P.S. it is illegal to change the locks.

  11. Mr. Lees says:

    Hello,

    I own an apartment building and my mother lives in Unit #1. She is the head of household in Unit#1. My brother, who also lives in Unit#1 with her, was kicked out of the apartment and now lives on the street but continues to harass her. He refuses to pay rent and does not want to cooperate. Do I have to go through the eviction process in order to remove his name from the residence?

    • Richard Magnone says:

      If your brother is “on title” to the residence, an eviction action will not resolve that situation. You have a serious set of facts there and should contact a real estate litigator to get some legal advice.

  12. Charlie says:

    Can a tenant be forced out of its home if it was only a verbal agreement? Meaning no contract was involved in order to stay at that resident. This includes no paper to provide proof of month to month rent payments. Even though that tenant has an ID with its address, keys of the property and currently receiving mail. If cops were to be called, will they be removed even with the information I provided. Let me include that this situation is a family matter if that helps with anything. Does the landlord need to give the tenant 30 days to move out?

    • Richard Magnone says:

      A tenant with an oral lease agreement still has a tenancy. In fact, if a property owner allows an occupant permission to reside in a premises, even without the obligation to pay rent, then the occupant still has a tenancy and cannot be forced out without following proper eviction procedures. What kind of notice to send depends specifically on the particular facts of the case.

  13. Sharon Redmann says:

    Have 20yr. old living rent free in my home. Would like her out asap. Have given verbal notice to vacate, no joy. Do not wish to go another 30days plus ? Is it possible to demand a weekly rent payment at this point? Does that need to be in contract form or can it be verbal? When rent is not paid give her a 5day eviction notice?

    • Richard Magnone says:

      There’s no easy out here. Typically, a landlord can change a month to month oral tenancy (for instance to add a requirement to pay rent or to change from month to month to week to week) by serving… a 30 day notice of the change. In a typical calendar month, that means if served on April 7, the change would be good for the rent and term beginning on June 1.