Proper Service of an Illinois Eviction Notice

In almost all instances, I advise my clients that an eviction notice, such as a five day notice for nonpayment of rent, be served personally on the tenant.  Personal service means putting the notice in a person’s hands.  Section 9-211 of the Illinois Forcible Entry and Detainer Act provides the law with respect to service of any demand or notice as follows:

Sec. 9-211. Service of demand or notice. Any demand may be made or notice served by delivering a written or printed, or partly written and printed, copy thereof to the tenant, or by leaving the same with some person of the age of 13 years or upwards, residing on or in possession of the premises; or by sending a copy of the notice to the tenant by certified or registered mail, with a returned receipt from the addressee; and in case no one is in the actual possession of the premises, then by posting the same on the premises. (735 ILCS 5/9‑211)

Recent case law from August, 2010 coming from the First District of the Illinois Appeallat Court in case 1-09-1844 known as Figuero v. Deacon indicates that the methods of service described in the Forcible Act are the only valid methods of service of an eviction notice.

As there are few situations where a tenant is not in actual possession (the only time a posting is valid), the only available options for service of an eviction notice are (1) personal service or (2) certified mail return receipt requested.

Service by certified mail return receipt requested may be the “easier” option, however, most tenants in arrears on rent or expecting an eviction notice do not accept certified mail.  The third district court of appeals case of Helland v. Larson 138 Ill. App.3d 1 provides for the concept of “constructive service” (meaning good service) in those cases where a tenant knows that an item of certified mail contains an eviction notice, and as a result, does not accept the mail  However, the case requires that there is proof that the tenant KNOWS THE CONTENTS of the certified mail and refuses it as a result.  The supreme court of Illinois clarified in the Illinois Supreme Court case Avdich v. Kleinert 69 Ill.2d 1 that the signed return receipt was necessary.  Helland is an exception but only if there is evidence that the recipient knew of the contents of the notice and purposely refused delivery.

The end result of either 1) getting a green card and presenting proof it was actually signed or 2) presenting proof that the tenant knew of the notice contents and refused them on purpose is that the case will require the presentation of additional evidence that can sometimes present proof problems.

Thus, in my experience, especially in the first district of Cook County, personal service (although also not perfect) is the best form of notice.

About Richard Magnone

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