Breaking Down the Landlord’s Five Day Notice

five day noticeThe 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.

About Richard Magnone

Co-founding member of Reda | Ciprian | Magnone, LLC, attorney at law and Illinois licensed lawyer since 1996.
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