Volunteer LawyerCourthouse Project

Basic Eviction Defense Training

Why Volunteer?

Volunteer Lawyer Courthouse Project enables volunteer attorneys to represent low-income tenants facing wrongful eviction

Provides valuable litigation experience for attorneys

Attorneys will receive support in and out of the courtroom

Asking minimal commitment (but feel free to volunteer as much as you like!)

What we’ll be discussing today:

Applicable Law Overview of Court Process Trial: Basics and Possible Defenses Judgments Client interviews Negotiation and Settlement Contacts and Resources

Applicable Law:The Forcible Entry &

Detainer Act735 ILCS 5/9-101 et seq

Forcible Entry & Detainer Act

Governs the procedure for evicting tenants and obtaining judgments against them for unpaid rent.|

“The sole means for settling a dispute over the possession of real property,” Harper Square Housing Corp. v. Hayes, 305 Ill. App. 3d 955 (1st Dist. 1999)

general prohibition against self-help evictions

Forcible Entry & Detainer Act, Cont.

FED statute is in derogation of common law. FED court is considered a “court of special and limited jurisdiction for that proceeding.” Russell v. Howe, 293 Ill.App.3d 293 (2nd Dist. 1997)

As derogation of common law, FED statute requires strict compliance with the statute.

But, also is remedial in nature and should be liberally construed so the remedy is effected. Nance v. Bell, 210 Ill.App.3d 97 (2nd Dist. 1991)

Applicable Law:Rental Property Utility

Services Act765 ILCS 735/1

Rental Property Utility Services Act

RUSA protects tenants from “utility tap” or LL’s interference with the tenant’s utilities

A utility tap = tenant is paying not only for their electricity, gas, etc., but also the utilities for another apartment or common area of the building

Knowing or intentional = triple damages

Applicable Law:Retaliatory Eviction

Act765 ILCS 720/1

Retaliatory Eviction Act

Public policy prohibition against LL filing FED because Tenant complained to a governmental agency about the conditions in her unit. Clore v. Fredman, 59 Ill. 2d 20 (1974)

Prima facie elements:1. Tenant reported to governmental agency2. Code violations found3. Landlord was notified of the violations

Beware: LL can defeat with some other reasonable business reason for evicting Tenant, e.g., building been condemned, needs to shut down to make repairs, Tenant didn’t pay rent.

Applicable Law:Termination Notices

Requirements, Types, and Service

Termination Notices

In most cases, the LL must serve the tenant with a termination notice before filing a lawsuit to recover possession of the premises.

Exceptions: term of tenancy fixed, tenant has waived right to written notice, dangerous criminal activity

Termination Notices…

All notices: Must describe the premises and identify

the apt.▪ Watch for incorrect addresses and/or incorrect

tenant on notice

Must provide that the lease will terminate at some future date (time period does not begin to run until the notice is served properly).

Termination Notices…

Types of Notices: 5-Day Notice for nonpayment of rent (most

common one)—if rent is not paid in five days, tenancy will be terminated. Notice must include a “legal demand for a sum certain.” 725 ILCS 5/9-209▪ Count additional business day if 5th day falls on

weekend or holiday 10-Day Notice—for violation of lease

provision. Must include description of breach and no opportunity to cure. 735 ILCS 5/9-210

Termination Notices…

Week-to-week tenancy = 7 day notice

Month-to-month tenancy = 30 day notice (also common)—no reason needed, and must be served no later than 30 days prior to date of termination

Minimum start date for valid notice is the day of week/month rent is due.

Tenancy ends at midnight on the last day of notice period. Hoefler v. Erickson, 331 Ill. App. 577 (1st Dist. 1947)

735 ILCS 5/9-207

Termination Notices: Service

Serving the Notice: Hand-deliver to the tenant Leave with someone 13 years of age and

up who lives in the residence Send copy by certified or registered mail

with return receipt requested Posting when no one is in actual

possession (common mistake by landlords)▪ American Management v. Carter, 392 Ill.App.3d 39 (3rd

Dist. 2009)▪ Figueroa v. Deacon, 404 Ill.App.3d 48 (1st Dist. 2010)

Applicable Law:Filing an Eviction

ActionLandlord’s Requested Relief, Service of Summons, etc.

Filing an Eviction Action…

LL can file for possession only or a joint action for possession and rent.

Cannot file until there has been a written notice properly terminating the tenancy

If service of summons by posting, can only file for possession (but, LL can amend to seek rent if tenant appears).

Filing an Eviction Action…

Service of Summons: return date must be at least 7 days from when summons was served

Acceptable methods of service: Personal Service Substitute Service Service by special order of the Court

(certified mail) Constructive Service (posting and

mailing or publication and mailing)—LL must sign affidavit

Court Process:Overview

First Return or “First Appearance,” Meeting the Client, Settlement & Trial

Court Process: Overview

Notify PSLS of the Friday you are planning to volunteer. Check for conflicts.

Meet PSLS staff at RI Co. Courthouse at 12:45 p.m. on chosen Friday. Meet with interested & eligible tenant(s).

If possible, attempt to negotiate and settle with LL. If not possible, and there is a meritorious defense, enter Appearance in case and set matter for trial based on your schedule. Generally trial is set for following Thursday.

File a Certificate of Determination of Indigence to avoid fees.

Limited Scope Appearance Supreme Court Rule 13 was amended in

2013 to allow attorneys to file limited scope appearances regarding one or more specific aspects of a proceeding

May withdraw on motion after completing the agreed scope of representation Oral motion to withdraw without prior notice,

or Written Notice of Withdrawal

▪ Client has 21 days to file Objection to Withdrawal

Court Process:Motions to Dismiss

2-615 Motions to Dismiss & 2-619 Motions to Dismiss

Court Process: Motions to Dismiss

2-615 –Insufficient Complaint Landlord permitted in most cases to

amend the complaint to fix deficiencies. Example: failure to attach the lease to

complaint

2-619 –Lack of Subject Matter Jurisdiction Tenancy has not been terminated—

notice not given Attach affidavit of tenant

Court Process: Trial Basics Often LL will insist on a quick trial date (and

that is common); however, be prepared to ask and argue for more time if needed to complete discovery

Many cases are resolved before trial, but a good number of cases involving pro se landlords do go to trial (they don’t know when they’re beat).

Can request a jury trial, though uncommon practice in Rock Island County

Court Process: Trial Basics Plaintiff has burden of proving his/her right to

possession of the premises Like any other trial, proper procedures for evidence

must be followed

As in all other civil actions, plaintiff must first establish a prima facie case: LL has right to possession of the premises Defendant has possession of the premises Defendant violated an applicable law or breached

agreement LL served written termination notice on Defendant If joint action, LL must establish amount of rent owed

Trial: Defenses

Defenses must be germane. 735 ILCS 5/9-106

What defenses are germane? Plaintiff not a proper party/lacks capacity

to sue Defendant has a claim under the

Retaliatory Eviction Act Notice not served properly Notice does not give the proper number

of days Plaintiff filed the FED action before the

notice period ended

Trial: Defenses

More possible germane defenses: Defendant owed no rent Defendant tendered all rent due before notice

period expired Defendant tried to tender all the rent due before

the notice expired but the LL refused to accept it Plaintiff failed to maintain the premises in

compliance with building codes, reducing its value by more than the rent owed

Defendant is withholding the amount of rent owed in compliance with the Rental Property Utility Services Act

Trial: Defenses

More possible germane defenses…when lease violation is alleged: Defendant never committed the

violation The conduct does not constitute a

material violation (if required by the lease)

Plaintiff accepted rent that accrued after the plaintiff learned about the violation

No reason given in notice, but has year lease

Retaliation claims

Judgments

Single Actions (possession only): If LL wins, he/she will get possession of premises plus costs Court can stay enforcement of judgment for a period of time If tenant wins, he/she entitled to possession of premises plus

costs

Joint Actions: If LL wins, entitled to possession and rent owed plus court costs LL can accept rent between entry of the judgment and

expiration of the stay and still be able to enforce the judgment; but, cannot take rent after the stay expires and still get possession

If Plaintiff does not show up to first appearance or trial, court should dismiss the case for want of prosecution.

Interviews at Court

Purpose: Collect information from client to evaluate case,

give advice, and form a defense strategy (if there is one to form)

Inform the client of rights of each party so he/she can make an informed decision

Tenants may not have all relevant documentation with them in court. You may need to schedule another meeting with the tenant prior to trial to review his/her relevant documents and evidence.

Negotiation and Settlement Damages:

Breach of Warranty of Habitability Violation of Rental Property Utility Services Act

If the tenant wants to move… Rent claims may be traded for possession (LL

forgo rent owed in exchange for tenant moving) If tenant has a good claim for damages, that

claim may be traded for rent-free time in the apartment until the tenant can move

Negotiation and Settlement Settlement options for move-out

agreements: Continue until move out date, then

dismiss

Stipulated Order of Dismissal—better option than entering an Agreed Order

Agreed Order—appears as judgment for LL on Judici and docket , which can create barrier for future housing, especially low-income housing

Negotiation and Settlement

If the Tenant wants to stay… More difficult to settle with the LL If the claim for damages is strong, can

negotiate to offset rent claims and the tenant can start paying again and stay in the apartment

Tenant may just pay the back rent owed and be allowed to stay in the apartment (will depend on the LL/Tenant relationship at the time of trial).

Length of tenancy may play a factor

The End!

Thank you for your interest in the Volunteer Lawyer Courthouse Project—we truly appreciate your dedicated service to low-income members of the community

If you have further questions, or require assistance during your participation in the Courthouse Project, please call any of the PSLS individuals listed in your Training Manual