Evicting a Commercial Tenant in Illinois

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 Can a Commercial Tenant Be Evicted in Illinois?

Generally, in Illinois, a landlord can evict a commercial tenant for just cause. This means that a landlord must have a legal reason. Eviction of a commercial tenant is an option in Illinois for a landlord when the tenant has violated a term of their commercial lease.

Reasons for eviction would include such conduct on the part of the tenant as failing to pay rent, engaging in illegal activity on the rented premises, or failing to repair the property when that is required by the lease. Eviction actions are governed by the Illinois Forcible Entry and Detainer Act.

In some cases, the landlord may want to allow a lease to end on its own terms, but the tenant refuses to vacate the premises. Or, a landlord may choose to terminate a month-to-month tenancy, but, again, the tenant refuses to vacate. If the tenant does not voluntarily turn over possession and vacate commercial rental premises when a lease ends, the landlord may have to evict the tenant by bringing a “forcible entry and detainer” lawsuit.

If a landlord-tenant relationship reaches a point where eviction is the only remedy available to the landlord, the procedures provided in the law must be followed.

It is not unusual for tenants to negotiate lease terms, such as a grace period, during which rent may be paid. It is important for a landlord to respect these terms, because not doing so could result in the landlord losing the right to evict the tenant or even collect the rent owed.

An important first step for a landlord who has decided that eviction is necessary is to find out if the tenant has filed for bankruptcy. If so, it limits the actions a landlord can take to recover any debt owed by the tenant: If bankruptcy is not an issue, the landlord should take the following steps:

  • Notify the Tenant: The first step is for the landlord to provide the tenant with the landlord’s Intent of Eviction. This is a notice demanding that the tenant meet its lease obligations or face eviction. In Illinois, a landlord must give the tenant at least five days’ notice before filing an eviction action.
    • This notice can be served by handing it directly to the tenant or by posting a copy of the notice at the commercial premises. If the tenant pays up or cures the problem within five days, then the landlord has no grounds for eviction and no reason to file a complaint;
  • Wait for a Response: If the tenant does not respond within five days, the landlord may file an action for eviction of the tenant with the local Illinois civil court. This is known in the law as “unlawful detainer” or “forcible entry and detainer” action. The court charges a fee for filing an unlawful detainer action;
  • Serve the Tenant: The landlord must, of course, serve a copy of the unlawful detainer action on the tenant. Local law enforcement can complete this task; in most cases, it is done by a sheriff or a licensed Illinois process server;
  • Request a Court Hearing: In some cases, this occurs without the court waiting for an answer from the tenant. Then, if the tenant does not respond, the landlord can promptly proceed with the eviction;
  • Proceed to court: If the tenant responds to the court order, both sides have their day in court. The landlord has the burden of proving that they are entitled to eviction by a preponderance of the evidence. If the landlord has correctly followed procedure, the standard result is a judge’s decision ordering the tenant to pay the unpaid rent and any court costs incurred by the landlord;
  • Request an Order of Possession: The main goal of an unlawful detainer action is to obtain an order for possession from the court. This order gives a landlord the right to retake possession of a rental property from the tenant. In addition, in what is known as a “joint action,” a landlord may also be able to obtain a judgment for rent owed to the landlord.

Once a landlord has an order for possession, the landlord still does not have a right to personally remove a tenant. The landlord must call on the county sheriff in the county in which the property is located to remove the tenant. In most cases, a judge grants a “stay of enforcement” of the order for possession to give the tenant time to make alternate arrangements for themselves. However, when the stay expires, a landlord may direct the county sheriff to forcibly remove the tenant from the rental premises.

The exact date of the forcible removal will depend on the sheriff’s availability. A landlord may have to wait for some period of time, possibly a few weeks, for the sheriff to act. If the commercial tenant has not vacated by the time eviction day arrives, the sheriff puts the tenant and its possessions out on the street. The building is now available to the landlord to occupy or lease.

A number of technicalities can cause problems in the course of an eviction action. For example, a case may be filed prematurely. Landlords want to be sure to provide the correct period of notice to a tenant before they file an unlawful detainer action. Many actions are dismissed initially because the landlord filed too quickly. This error cannot be fixed, and it forces the landlord to begin the process all over again. This would entail paying more filing fees and incurring more costs and lost time. A non-paying tenant may enjoy a longer rent-free tenancy in the landlord’s property.

Illinois law specifies different notice periods depending upon the written lease and the reason for termination of the tenancy, and the notice served on a tenant must be the right kind of notice. In addition, the Illinois statute requires that certain notations be included on the notices given to the tenant if the notice is to be effective.

Then, the notice delivered to the court should contain an affidavit of service, which is a sworn statement by the person who delivers the notice to the tenant. It is possible that a tenant would appear in court and claim that they did not receive proper notice from the landlord.

For this reason, it can be a good practice to bring along a person to witness the delivery of the notice to the tenant. This person can then act as a witness to the service of the notice in court at a later date if necessary. They can take notes about the service, such as the date, time, what the person served was wearing, and other facts that may lend credibility to the landlord’s court testimony about the service.

If a witness cannot be found, the landlord can make notes about the circumstances of the service of the notice. Or, a landlord may wish to hire a special process server to give service of process to the tenant. Professional process servers charge a fee, of course, and possibly more than the local sheriff, but they may have a higher success rate, which may justify the cost. Tenants may be able to evade law enforcement, and this can cause a delay of weeks or months.

Currently, Illinois law requires that all landlords have the county sheriff make the first set of attempts to serve notice on the tenant.

Of course, a commercial lease is a contract, and, as is the case in any contract dispute, it is recommended that both parties consult experienced attorneys to make sure they get the best possible outcome. A tenancy in real property can be very important to a commercial enterprise, and a business owner wants to make sure that they are treated fairly by their landlord.

Similarly, a landlord’s investment in commercial rental property is important and consulting an experienced Illinois real estate lawyer is the best way to make sure the investment is a successful one.

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