The most common notice to terminate a tenancy is a five day notice. This is the notice that is generally required when a tenant fails to make timely payment of rent. The requirements for a demand for rent are contained in Section 9-209 of the Illinois Forcible Entry and Detainer Act. The act provides in part:
Sec. 9‑209. Demand for rent ‑ Action for possession. A landlord or his or her agent may, any time after rent is due, demand payment thereof and notify the tenant, in writing, that unless payment is made within a time mentioned in such notice, not less than 5 days after service thereof, the lease will be terminated. If the tenant does not within the time mentioned in such notice, pay the rent due, the landlord may consider the lease ended, and sue for the possession under the statute in relation to forcible entry and detainer, or maintain ejectment without further notice or demand. A claim for rent may be joined in the complaint, and a judgment obtained for the amount of rent found due, in any action or proceeding brought, in an action of forcible entry and detainer for the possession of the leased premises, under this Section.
This provision allows the landlord or landlord’s agent to serve a notice of not less than five days (unless a lease modifies that time period) with a written demand to pay rent that will terminate the lease if unpaid within the time provided. Following the expiration of the time in the notice, a landlord may bring a forcible entry and detainer action actionst the tenant. The notice is generally a prerequisite to the filing of a forcible entry and detainer action. The service of a proper notice is jurisdictional – that is, a court will not hear the eviction case until it is satisfied that a proper demand for rent has been served or is not necessary. Thus, the five day notice demand for rent is an essential, if not critical, part of the eviction case. The five day notice must be properly prepared, must contain the appropriate information, and must be properly served on the tenant in compliance with the law in order to proceed with an eviction case.
Let’s take a look at a five day notice in more detail.
The five day notice is properly titled. I have seen judges in Cook County throw out cases when the five day notice contains a confusing, misleading, or inappropriate title. The notice then has a place to insert the name and address of the tenant.
The main body of the notice provides the tenant with notice of the amount of rent that is due the landlord. Again, the landlord needs to insert the full and proper address of the premises. At present, the Cook County Sheriff will not enforce an eviction that does not contain the proper designation of street, boulevard, road, etc. in the address.
The notice then mimics the language of the statute and indicates to the tenant that the tenant must make payment in full within five days after the notice is served in order to maintain the tenancy. Any tenant who fails to make payment will have their tenancy terminated. There are five day notice forms out there that indicate that the “lease of said premises will be terminated immediately“. This verbiage is incorrect, contrary to the statute, and is a great way to have a case thrown out of court.
Now, we get to some statutory requirements that can be confusing. First of all, the language beginning “ONLY FULL PAYMENT…” is language required by the Forcible Entry and Detainer Act. Once again, Section 9-209 requires in part:
Notice made pursuant to this Section shall, as hereinafter stated, not be invalidated by payments of past due rent demanded in the notice, when the payments do not, at the end of the notice period, total the amount demanded in the notice. The landlord may, however, agree in writing to continue the lease in exchange for receiving partial payment. To prevent invalidation, the notice must prominently state:
“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.”
Collection by the landlord of past rent due after the filing of a suit for possession or ejectment pursuant to failure of the tenant to pay the rent demanded in the notice shall not invalidate the suit.
The statute requires the “ONLY FULL PAYMENT…” language and any demand for rent that does not include the language is invalid, will not satisfy the requirements of the statute, and is likely to be thrown out of court.
Interestingly, the statute indicates that a landlord may accept partial payment and the acceptance of that payment will not invalidate the demand for rent or the landlord’s right to proceed with an eviction. For rentals governed by the Chicago Residential Landlord Tenant Ordinance, this is absolutely not correct. Section 5-12-130(g) of the CRLTO provides that when a landlord accepts rent, knowing that there is a default, the landlord waives the right to terminate the lease.
The body of the five day notice ends with a place for the landlord or landlord’s agent to sign and date the notice.
The final portion of the notice is the Affidavit of Service. This affidavit is to be filled out and signed by the person who actually serves the notice on the tenant or occupant. The signature of the person signing the affidavit must be notarized. This is the proof that is presented to the court to establish that service of the five day notice was made on the defendant in the case. Keep in mind, the affidavit is filled out after the notice is served on a copy of the notice that is retained by the landlord. The copy of the notice that is given to the tenant should not have the affidavit of service filled in nor need it be notarized.
The proper preparation and service of a demand for rent is essential to all evictions resulting from nonpayment of rent. Although the form seems fairly simple, there are instances where the technicalities of the law can cause the form to be invalid or subject or being thrown out of court. I advise all my readers to have a clear understanding of the law when it comes to five day notices and to consult with an attorney as to proper form and service of the notice. Our firm provides notice drafting services for landlords. I urge all readers to consult an attorney before acting. During my many trips to the eviction court, I have seen many eviction notices (of other landlords) thrown out because they were improper in form or were not properly served. Landlords cannot afford to lose any more time to a non-paying tenant. Meeting the technical requirements of an eviction notice is one of the most important aspects of the eviction procedure.
If a friend or relative is allowed to stay in your house, (empty house) with no rent and only pay the utilities that they use, are you considered a landlord or a good person? If you ask them to leave and they will not, can you give notice and then move their stuff onto the curb and change the locks? What other recourse do we have…
i was just issued a 5 day notice due to subletors attatched to our lease…. we are not able to cover what they owe, so we are assuming we will just be evicted. after this 5 day notice, are we automatically thrown out of the unit, or is that when the eviction process starts? basically, i am asking if we are out ont he streets in 5 days, or what can we expect as a time frame? your timely response would be much appreciated considering the short time limit.
thank you
becky
I’m not sure I understand the question. Are you living in the property? Are you a sublessor? Are you a sublessee? I don’t have enough facts to answer your question or to provide legal advice.
In general, under Illinois law, the service of a 5 day notice is the non-judicial start of the eviction process. Until an eviction notice is served and the time period expires without cure (if there is a right to cure), the landlord has a right to initiate eviction procedures in the court. Thus, an eviction notice (except in those places where notice is waived) is “jurisdictional” to an eviction case. After the notice has expired without payment, a landlord has a right to begin the judicial portion of the process. This process must be carried out to obtain an order for possession and then the order for possession is executed by the Sheriff.
So a question about the “ONLY FULL PAYMENT” section…you said if the landlord receives and accepts any amount from the tenant then they cannot terminate the lease, they must issue another 5 day notice? So technically could this go on and on indefinitely? I have had an awful year financially and owe quite a bit of money to my landlord. I received a 5 day notice today and I want to make payments but I cannot pay the entire large sum in full right now. Would I be able to keep sending money each week and be safe from eviction as long as I am doing so?? Also, the name on the 5 day notice is correct but they have the incorrect apartment (1B instead of 1A listed)…how does that affect the notice? Thank you!
There’s alot to cover in your question and not enough facts for me to give you an answer upon which you can rely. Unfortunately, we don’t generally represent the tenant side in evictions unless they have a CRLTO defense attached. There are many really good tenant side attorneys out there and you should contact one (fast!) to learn about your rights.
In general, the “ONLY FULL PAYMENT…” section provides that a partial payment DOES NOT invalidate a 5 day notice, so a tenant cannot pay half the rent and expect an extension without something from the landlord in writing. HOWEVER, there is a provision of the CRLTO that expressly changes this for CRLTO covered properties.
Elizabeth, you should get some legal advice from a local tenant’s rights attorney before any relevant notice periods expire.
For serving a 5-day in Grundy and or Dupage is the 1995 version of the 5-day any good?
on this version, it calls for proof of service and has choices how it was served for example delivering a copy to (whoever answers the door) or leaving a copy or sending a copy certified through the mail, or by posting at the unit door there being no one who answered?
I don’t know what form you are referring to. There are so many companies “out there” that sell form that it is impossible to know. Just like with leases, there is rarely an “official form”. (Although it is possible that Grundy County or DuPage County might issue “court forms” of a five day notice – I don’t know).
The requirements of service are in the statute and must be met.
Is a five day notice the same as an eviction notice?
There are many types of eviction notices – the most common being the 5 day notice for nonpayment of rent, 10 day notice for breach of lease, and 30 day notice to terminate a month to month tenancy. There can be other types too depending on a lease and rental situation. Each situation is different and has to be separately evaluated.
My question is can your landlord just put a 5-day notice by your front door or under it?
Thank You
Nope. The Illinois Forcible Entry and Detainer Statute lists the three methods for serving a notice. Posting on a door or sliding under a door does not get the job done.
I received a 5 day notice that was placed under my door, it has no signatures at the bottom, is this a legal document or a scare tactic?
A 5 Day Notice is certainly a legal document. The question is whether or not service is proper. Since I am not your attorney and since we do not represent tenants in eviction defense, I can only direct your attention to this post and suggest that you contact a tenant’s right’s attorney as soon as possible to fully explore your rights and obligations.
So if the 5 day notice doesn’t have St. as part of the address, will it definitely get thrown out of court? Should I re-serve a corrected one? Or is it just that the court filing has to have the full address? Thanks much!
My own experience to date is that not having the “street” or “avenue” or “boulevard” on the 5 day notice does not seem to be fatal to a case. I do make sure that the complaint and the order for possession have the full and complete address.
My landlord served us with a 5day notice due to partial rent payment. The 5 day notice was taped to our door and it was signed and delivered on the 18th of June with demand of the balance due on the 22nd of June. Is this improper service of the notice and is the time period too short? The day of service is not supposed to be included in the 5 days? Correct?
Bob, we don’t represent tenants in eviction, so I can’t address your question directly and I don’t know all of your facts, so this is not legal advice.
Generally, the case of Figueroa v. Deacon discusses the current law regarding manner of service and indicates that the statutory forms of notice provided in the act at 735 ILCS 5/9-211.
Also, generally, the first day of the five day period in a five day notice is counted on the first day after service of the notice.
Evictions can be serious business and many important rights are at stake. Be sure to consult with an attorney to represent you and protect your rights. (This message is not legal advice).
I recently received a 5-day notice, however my situation here is a bit complicated. The landlord is losing custody of the apartment building and it is going through a foreclosure process at the moment. In the meanwhile a third party has been named to receive all income for the building. It is my understanding that my landlord is still the same guy, he just cannot accept rent.
I withheld my rent because of this coupled with the fact that the status of my security deposit is unknown. My question is does the third party have a right to serve this notice to me? Also the language in the form looks good however it states that if i do not pay within 5 days my “rights” will be terminated instead of the term “lease” What does this mean if anything?
Jon, evictions where foreclosure is involved can be tricky business. Our firm does not represent tenants in evictions, so I can’t assist you here. You should, however, contact a tenant’s rights attorney at once to get some answers.
I have a question I live in aurora Il my landlord just served me with a five day notice that stated that if 1300.00 isnt paid in full within five days he is changing the locks on the fifth day now here is where it gets complicated my lease is up on Sept 1st he gave me the notice on Aug 28th there is no way I will be able to pay that amount by then so my question is does he have the right to change the locks on the fifth day if the amount isnt paid since my lease will be up or does he still have to follow eviction procedures and have a court order to put us out even though the lease is up if he doesnt go through the courts is that considered an illegal eviction even though my lease is up and will I have the right to sue him for that? Please someone answer me with the correct information regarding this.
A landlord NEVER has the right to change locks and throw out a tenant’s possessions. You have a pretty serious issue there and need some help! We don’t represent tenants in evictions, but there are many fine attorneys who do. Contact one asap to get some advice.
I was given a 5 day notice to pay the amount owed in rent but I can not pay that within 5 days. My question is on the 6th day can I be thrown out of my apartment? The notice says that if it is paid with in that time time frame that my lease will be terminated. (my lease is up on the 31st of this month). The notice says the landlords demands possession of the premises on said date. Also unless I vacate the premises on or before said date, suit to recover possession of the premises will be instituted on after that date. Does that mean if the balance is not paid the eviction process will begin?
Generally, when a valid five day notice expires without payment, a lease/tenancy is technically terminated. At that point, the landlord has the option to instiute a forcible entry and detainer lawsuit, but the landlord is not required to do so.
We were going to be late to pay our August/September rent which is due on the 15th of August, with 5days of grace. We notified our landlord, with a promise to pay by month’s end. She sent us a certified “strict compliance letter” that we pay her with late charges as stated on the lease. As month’s end drew nearer, we realized we may not be able to make that payment, while still being on time with the next one on September 16. So we sought help with an agency that approved our case with the “strict compliance letter” from the landlord. Only problem was they still needed a 5-day notice. We requested one from landlord and it a big hassle to get one from her. After eventually issuing the notice, she then refused to sign the 1099 form from the agency. She wanted the agency to pay her what we owed plus the following month’s rent. She asked to wait for the next 5 day notice she will be issuing. The problem is the agency could only help us with the month we owed, which was all we asked for. We knew we were going to be able to make the following month’s rent. Landlord dragged the case until the next rent was due; which we paid through bill payment with our bank. But strangely, she didnt cash it, but waited till the 22nd of September and sent us another 5days notice. She claimed she got the check on the 25th and she is not going to take it because we didn’t meet the terms of the lease. She wanted to know if to mail the check back to the bank or to us. This was on the 26th of September. The bank told us it was sent out the 18th and she acknowledged it was postmarked the 19th. We’ve tried all we could to work with her but she wont speak with us or respond to multiple emails when asked what she wanted us to do. When we didnt hear from her, we told her on the 28th to mail the check to us. Still no response. Then on the 29th, she sent a “what to do” email, saying to contact her attorney with concerns and questions. We’ve learned it’s landlord’s right to accept or reject payment from the agency, and it does seem this is heading for eviction proceedings.
What would be the best next-steps for us? And do we have to contact the attorney or wait to hear from them?
Thank you for all that you do.
It is always unfortunate when a landlord and tenant cannot work out an agreement. That said, the loss of possession in an eviction is a serious matter. You need to contact and consult with an attorney who handles tenant-related matters at once to protect your rights.
I have a roommate that stopped paying rent. There is no written lease & I am serving her with a 5 day notice today. What is next in the process if she doesn’t pay?
In Illinois, assuming that a tenant is properly served, the notice is not deficient, and the tenant fails to tender the proper amount of rent within the 5 day period, the next step in an effort to obtain an order for possession is to file a focible entry and detainer (eviction) lawsuit in the circuit court.
If you need assistance with this process, please feel free to contact us to see if we are a match for an engagement to represent you.
I was a good paying tenant until I experience medical problems. I told my landlord that there was mold in the closet…and he said that I caused it. I proceeded to clean it with a solution (from the internet)…shortly thereafter I started to experience shortness of breath. I had an emergency room visit and was given an inhaler. I continue to decline in health and am now on the inhaler permanently (diagnosed with bronchitis). A new lease was drawn and I was unable to start the rent at the beginning of the month. The landlord issued me a 5-day notice on the 23rd day of the lease. Evictions proceedings are in a few days. Can his 5-day notice be valid on before the 30th day?
Ivette, we are a landlord’s firm and you really need the help of a tenant’s attorney. I can discuss 5 day notices in general though. A 5 day notice may be validly issued whenever rent is “late”. When is rent late? That depends on the terms of the lease. Some leases say rent is due on the first and if rent is not paid on the first, the landlord can serve a 5 day notice on the second. Some leases say rent is not deemed late until after the 5th day of a given month. For those leases, a landlord would wait until the sixth of the month to serve a notice. It would be rare for a landlord to have to wait all month before being able to serve a 5 day notice. The concepts of a notice ending on the last day of the month really apply to 30 and 60 day notices.
Because I don’t know your facts, I can’t provide legal advice on your situation. My best suggestion is that you seek the assistance of competent tenant’s counsel at once.
I received a 5 day notice but on it the landlord had rent owed PLUS damages and attorney’s fees. Is that still valid. I have no idea what attorneys fees or damages there are.
Is the notice valid? It might not be, but I don’t have enough facts about the situation to advise you. That depends on a number of factors like where your rental is located and what your lease says, if anything, about notice and additional rent. You should consult with a tenant’s rights attorney at once to learn your rights.
No lease. Month to month. Chicago rental. Also received harrassing notes from owner. Also was left notes on the 5th day telling me i needed to be out and off their property by the end of that day. Yesterday landlord gave a key to another tenant to go into my place and see if I was in there.
I accepted full payment after the five days. Did i waive my right to sue for possession? My unit is in Elmwood Park.
We are working on a blog post on this topic right now. Stay tuned.
I served my tenant a 5 days notice on January 15 2013. However, I realized that I have dated the notice January 13, 2012 instead of 2013. Do you think this is a fatal error and I would have to serve it again with the correct date?
It could be fatal in the eyes of the judge looking at the case. At a minimum, it could give the tenant something to “fight over”. Tenants don’t just win by winning their case. They also win by delaying your case (and living, usually, rent free for even longer). Re-serving the notice might cost 5 days. Serving a notice subject to a potential challenge could cost the case and if not could still cost many weeks of fighting.
My friend let his girlfriend stay at his place on and off for about a month. She only has a small bag of clothes there. They got into an argument and she called the police. My friend just asked that she be made leave his home. The police said she has established residence there and that he has to evict her is this true? If so what should he do?
I just recently did a refresher post on roommate and family member evictions. When someone has established a tenancy (or in cases where the police think there is enough evidence in their judgment that they have), the police will not remove someone as a trespasser. In those instances, it is usually necessary to evict the occupant through the formal court procedure. I don’t know enough of your friend’s facts to give legal advice on his situation, but this is not uncommon.
Chicago commercial lease. If served with a 5 day notice, and no rent payment made in 5 days, is the lease terminated on the 6th day?
What is the evicted renter’s obligation? Is it rent up to the point of vacating the premises or additional rent up to the end of the lease?
What happens to the three month security deposit? Is it lost or returned minus rent owed? To clarify the last question:
What happens to the three month security deposit? Does the evicted tenant lose his security deposit money (stays with landlord) or is it returned to tenant minus rent owed?
Commercial evictions are an interesting situation. Why? Because in a commercial eviction – unlike a residential one – the tenant and landlord are usually believed to have had an equal bargaining position when making the lease. For this reason, courts will “enforce” many provisions that would be difficult to enforce in a residential case. So, whether the tenant is on the hook until they vacate, until a judgment, or for the balance of the entire lease really depends on what the lease says. A careful reading of the lease and the 5 day notice are required to make that determination.
What about the security deposit? That depends on the lease as well. Does the lease include a liquidated damages clause? Does the lease provide a right to apply the security deposit for unpaid rent? It depends on the lease. For a tenant to get clear answers in a situation like this, the tenant needs to consult with an attorney.
I was issued a 5 day notice by my landlord or the 3rd of February I start paying the amount February 4th. On the 8th of February I then receive a call from my landlord office asking me when will I be able to pay the balance? I said the 25th of February the man I spoke with said OK. On the 15th of February I received a Summons to court March 4th. On the 25th I paid the amount in full which he stated in the summons. He’s still trying to put me on the streets by March 31 2013 I there any help for me?
Maybe. You need to contact a tenant’s rights attorney (we don’t take engagements from tenants in eviction cases) asap.
Hi Mr. Richard Magnone,
I am a lanlord in Milwaukee, WI. I gave my tenants a 28 day notice on 3/2/13 to end our rental contract, end of March 2013. Once she got the 28 day she is not paying March rent and continue to live for free. Could I give her a 5 day notice for not paying March rent and file eviction for non-payment? My other question is assume if she pay me March rent once recieve the 5 day notice–could I still file an eviction against her if she does not move out by 3/30/13? Thanks
Ge, I have no help for this one. First, I’m not licensed to handle legal issues in Wisconsin. Second, and equally important, I don’t know anything about Wisconsin’s landlord tenant laws! You need to find some help from someone with a knowledge of the laws there. I do know that Milwaukee attorney Tristan Pettite is active on the internet with respect to landlord-tenant issues. Perhaps he can assist.
I just received a 5 day notice from my landlord, I came across it when i was outside walking the dog, it was under the bush under my living room window (not by the door). It says I owe a large amount of money for rent I wasn’t paying. On the lease it says i have to pay $625 a month and they are saying its $750 a month. What are my options?
K.G., you need to contact a tenant’s rights attorney to learn your rights.
Ok. Thank you very much.
I had a tenant and his girl friend move in to my building the both signed the lease, he lost his keys and only paid $10 toward the $50 lock out fee, he has broken into the building , tools have gone missing from units still being worked on, he comes at strange hours demanding entry and fighting and disturbing the peace with the other tenant ( roommate) he is late on his payment plan on security deposit, as well as junes rent and the lock out fee was only partially paid he was given an apartment key but not an exterior key due to the fact the store had the wrong blanks and then he never met up to pay for them and recv them the several times I have been to the bldg, a five day notice was served to the roommate for lack of rent payment thru a process server, she the tenant posted on her door for him to see, after 5 days the lease terminates, the other roommate wants a new lease and wants to stay, if she changes the locks and removes his belongings am I
at risk, he is stealing from her atm account and breaking into her bedroom and she is afraid for her life with him… what can I do the rest of his building doesn’t have tenants yet and wont for 3 more weeks
That’s a rough story. That said, both tenants are jointly and severally liable on the lease. If the roommate locked the tenant out, you could be blamed (I can’t say whether or not it would hold up, but fingers could point your way with claims of wrongful eviction). Your situation is too complex to provide a comprehensive answer here. You really need a consultation with an attorney.
My girlfriend and I were living with another couple. They moved out sometime in June and did not pay their portion of the rent for June and now for July. All 4 of us signed the lease. We paid our portion on time for June and July. We just recieved a 5-day notice, dated July 6, received July 9 demanding $1100.00. We cannot pay it but we paid our portion of the rent for the whole month of July on July 1st. What does the 5-day notice mean for us? If we leave within 5 days, is the lease terminated? Can they come after us for the money owed by the other couple? If we stay until the end of July, what does it mean for us? Thankyou
Debbie, tenants under many leases are signed with “joint and several liability” meaning that you may be legally responsible for the other couple’s portion of the rent and might be responsible for other damages. We don’t represent tenants, so my best advice is that you contact an attorney who handles eviction defense.
Hello,
I know you don’t represent tenants but I was recently served a 5 day notice while living in the premises and they taped the notice on our door. I now know its not a proper way of serving the letter because we were still living in the unit.
My question is: The notice says serving it on the door can only be done if the premises is vacant. What is the point of this? How is a tenant suppose to know there was a 5 day notice if they no longer live in the premises?
That provision is in the law for a tenant who abandons a property but leaves possessions inside.
I served a 5 day notice for non payment of rent personally and handed it to one of the tenants on the lease. After serving it, i got it notarized. There are 3 people named on the lease. In court, can they claim they never received notice even though I personally handed it to one of them? If they claim this, will the case just be thrown out based on their word versus mine? Apartment is in Cook county but not Chicago. Thank you.
Whether or not service was made is a question of fact and the judge or jury will have to make a decision based upon all of the evidence the two sides present.
I would like to deliver a 5 day notice to a tenant in my unit, but I know they won’t accept it from me. Is it ok to have a third party serve them the notice?
Any adult can serve a termination notice. It is good to choose one who is willing to testify in court if necessary.
My tenant is avoiding me, is it permissible to serve him a five day notice at his workplace? I’m in Chicago and don’t want to end up a harassment lawsuit.
Yes, a tenant may be served by a landlord at their workplace, but should not be harassed or served in a harassing manner.
Can a landlord post your 5 day notices on the outside of your apartment door?
That depends on the facts of the situation (and I don’t know your facts, so I can’t provide legal advice). Generally, posting is not allowed except in a very limited circumstance carved out by the law. In all cases, the notice must be served in compliance with the statute.
I am an out of state landlord trying to serve a 5-day notice to a non-paying tenant. I mailed the 5 day-notice (certified mailing) but the USPS tracking states that the letter was “Undeliverable-as-Addressed”. Apparently the non-paying tenant has not changed their address with the post-notice nor have they removed the previous tenant’s name from the mailbox. The letter is now sitting at the post office. What are my options?
It might make more sense to pay a special process server to personally serve a notice.
My landlord served me a 5 day notice, however my security deposit is covering the last months rent and I do not owe him any more money. Also he served me the notice 2 days before my lease is up. Is the 5 day valid?
Why wouldn’t it be? Security deposit is not prepaid rent. I don’t know what your lease says, but most leases provide that security deposit is not to be used as last month’s rent. In fact, unless the lease specifically allows for the deposit to be applied, it generally cannot be.
My roommate and I were served with a 5 day notice. The 1st name is right, Eric, but the last name is someone I have never heard of. Not misspelled, but completely wrong. What will a judge say about this? So the 5 day notice has a wrong last name on it.
Eric, you need to contact a tenant’s rights attorney. We can’t assist with that.