The 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.
Does this still apply? I was in court 5/23 listening to some cases and in one of the cases the tenant said she had given the landlord a partial payment She was expecting that to stop the eviction, however it did not stop it. The judge asked her if she had anything in writing from the landlord agreeing to continue the lease and she said no. Judgement was for the plantiff for possession and the amount equal to what the landlord was asking for minus what the tenant had paid.
I gave my tenants a five day notice and then accepted a partial payment but when they didn’t make the next payment, I issued another 5 day notice to make sure I was covered.
I was not in court, so I don’t know what exactly happened. Are you sure that the case was a Chicago case? Did the tenant assert the defense?
Different judges apply the law differently. My practice has always been to issue a new 5 day after partial payment in Chicago cases to avoid the possibility of a successful defense by a tenant. Based on anecdotal evidence, I do not believe that this law is applied evenly through the eviction courts in Cook County.
As I don’t have all of your facts and I do not represent you, this does not constitute legal advice and may not apply to your situation. Always retain and consult an attorney before acting.
What if I have 1.5 month’s advance rental on account from the tenant? In the lease, it’s specifically stated the 1.5 months’ advance rental is to be used as rental for the last 1.5 months on the lease term (say March 2013). Can I still issue a 5 day notice if no rental is received for July 2012?
Jan, based on your facts (that the 1.5 months of prepaid rent is for 1/2 February, 2013 and all of March, 2013), a tenant that does not pay rent in, say, July, 2012 can be served with a 5 day notice. Security deposit and prepaid rent that is specified to be applied to a certain period need not be applied to prior periods. Obviously, I have not seen your lease and this is a theoretical example and not legal advice upon which you can rely.
I recently received a 5 day notice. I was having some issues with my bank and my rent was basically bouncing back and forth. I received the 5 day notice in the mail…which does not seem right?
Anyway, I sent my payment through on time… Only to have it returned 6 days later. My bank had closed my account due to suspicious activity. So with that, I dropped a money order of at the management office. I have tried several time to get an update, verification from my building manager but am being ignored.
Any thoughts? Insight or advice?
Sara, you need to get representation from a tenant’s rights attorney. I don’t know what City you are in, so I can’t comment on whether or not the landlord’s acceptance of rent is a waiver (or even if they accepted the rent). Your tenancy could be at risk though, so you need to get some help from an attorney that handles tenant problems.
I received a 5 day noticed for February rent and my landlord accepted partial payment and i am waiting for my taxes to come in this week to pay March n the rest of febuary which is coming this week.. does he have to serve me another five day notice before he can file for an eviction now… i live in chicago illinois
Tonja, as I mention in the article, there is a difference of opinion as to whether or not partial payment will waive the landlord’s right to proceed under the CRLTO. There is also the issue of whether or not the 5 day notice has the required “Only Full Payment legend on it”. I haven’t seen your notice, so I can’t comment and we don’t generally provide legal advice for tenants in evictions. You should contact a tenant’s rights attorney at once to get some help.