Stick to the basics when it comes to evictions for nonpayment of rent

By now, my readers should know that the Illinois forcible entry and detainer statute is hyper-technical.  It is easy to get “off track” in an eviction.  Landlords can get easily distracted from the essentials of an eviction case.  When that happens, they focus on “side-issues” that don’t really impact the eviction case.  These side-issues only serve to distract from the case and sometimes even allow a defendant to stumble onto an issue that will cause a delay or may even prove fatal to the landlord’s case.

In every “joint action” eviction for nonpayment of rent, a landlord must prove a “prima facie case”.  That is, the case that must be made before a court will entertain ordering a judgment for possession and rent.  The landlord must prove (1) a right to possession of the premises, (2) that the defendant is in possession of the premises, (3) that the defendant unlawfully holds possession, (4) that the landlord served a written notice of termination of tenancy (usually a 5 day notice) that went unpaid, and (5) that the tenant actually owed the rent demanded in the tenancy.  After establishing a prima facie case, the tenant has the opportunity to assert defenses to the plaintiff’s case.

Here are some of the common “side issues” that can distract from the landlord’s prima facie case.  Most of the time, these issues, while sometimes interesting and possibly illustrative of the tenant’s general course of conduct, will be totally irrelevant to the case.  These issues may even be useful during cross-examination or to determine ancillary matters such as the length of the eviction judgment stay period, but they are not part of the prima facie case.

1) “The tenant always paid rent late”  – The fact that a tenant made late payments in the past has no bearing on the case at hand.  The fact that rent is currently due and is now unpaid is, however, important to the case.

2) “The tenant makes noise at all hours of the night” – This may be true.  It may even be possible to evict a tenant based upon the tenant’s noisemaking activities.  Nonetheless, an eviction based on the non-payment of rent has nothing to do with whether or not the tenant is making noise.  Evictions based upon lease violations, such as clauses in a lease prohibiting loud disturbances at night or prohibiting tenant damage to the rental premises, are more properly based on a 10 day notice for breach of a lease term.  At the time of filing, the landlord has to choose the basis upon which they will terminate a tenancy.  Once the landlord chooses to proceed based on nonpayment of rent, it is the rent that is at issue (and usually a 5 day notice that is required) and breaches of other lease covenants are irrelevant to the case.

3) “The tenant was a defendant in one or more prior eviction cases” – Oops!  I hear this one a lot.  Unfortunately, information like this comes too late once the landlord is ready to evict a tenant.  The only thing the tenant’s past eviction history proves is that the landlord did a bad job of tenant screening.  Courts consider each eviction case on its own merits and do not take into account the past behavior of the tenant.  Even a tenant who has been evicted ten times before will get the same rights at trial as someone who has never been evicted.

4) “I am about to go into foreclosure”. That’s certainly cause for concern, but the fact that a landlord is about to go into the red does not differentiate one landlord’s eviction case from the hundreds of others being heard in the eviction courtrooms on any given day.  In fact, many, if not most, of the landlords in the eviction courtrooms are facing the prospect of foreclosure because their tenants are not paying.  Unfortunately, the system moves no faster for those landlords than any others.

Lessor’s conducting an eviction do best when they stick to the basics, prove their case, and keep things on track.  It is important not to get bogged down in issues that have little to do with the basic case and only provide the tenant an opportunity to delay or win a case.