Acceptance of rent after expiration of 5 day notice

accept rent after noticeI recently received a question from a reader of this blog about the acceptance of rent after the expiration of a five day notice outside of Chicago.  The question was as follows:

I accepted full payment after the five days. Did i waive my right to sue for possession? My unit is in Elmwood Park. – David

First, it is important to note that Elmwood Park is not part of the City of Chicago (this may seem obvious to some, but every now and then I come across a landlord or a tenant who mistakenly believes the CRLTO applies outside of Chicago).  This means that the waiver provision of 5-12-130 of the CRLTO does not apply, so I won’t discuss that issue here.  We then have to look at the Forcible Entry and Detainer Statute.  At 735 ILCS 5/9-209, we can find some information about the acceptance of rent after a demand for rent is served.

First, the statute says that if the tenant fails to pay within the notice period, the landlord can consider the lease at an end and can bring an action for possession of the rental property.  The statute then addresses when the landlord accepts partial payment during the notice period and provides that a landlord may do so as long as the demand for rent served on the tenant includes a statement indicating that the acceptance of partial payment will not invalidate the notice.

The exact language prescribed by the statute is: “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”,

So that takes care of payments during the notice period.

The statute goes on to describe the acceptance of payments after a forcible entry and detainer lawsuit has been filed.  The statute says “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.”  So, the statute provides that it is ok to collect partial or full past due rent after the lawsuit has been filed without invalidating the eviction.

But what about the time period in between the notice period and the filing of a suit?  There’s no answer for this in the statute.  It is probably okay to accept the rent but it will depend on the facts of the landlord’s situation. In practice, we have seen many judges “throw out” a landlord’s case for accepting partial rent during the five day period or for accepting full or partial rent after the notice period has expired.

Landlords who want to proceed to regain possession through eviction should never accept rent for a period after the eviction notice expires.  For example, if a notice is served for January rent and the tenant makes a payment by check but the check indicates “February Rent” in the memo portion of the check, the tenant would have a good chance of prevailing.

Even when a landlord strictly complies with the law on payment after the notice period, acceptance of rent can complicate the issue.  As I mentioned, a judge’s decision really depends on the facts and how they are presented.  Has the landlord accepted late payments after delivering a five day notice in the past without filing suit?  If so, a tenant may have a “waiver” argument.  How much was paid?  The more money that gets paid, the more likely a judge will not throw the tenant out.  Did the landlord give the tenant any indication that payment in full would satisfy the landlord?  The intention of the parties when money was paid or taken could have a bearing on a judge’s decision.  Whether or not the landlord has already cashed the tenant’s check can make a difference.  Many judges will allow a landlord to bring an uncashed check to court and will allow the landlord to accept the payment as “use and occupancy” without jeopardizing the landlord’s right to possession.  Of course, there is a risk in any eviction that a judge might find, notwithstanding the language of the FED statute, that it is plain “unjust” for the landlord to be paid in full and continue to evict.

These situations can be tough.  Landlords want to get paid for the rent that is due them and it is sometimes hard to turn down the opportunity to accept the tenant’s money.  Landlords should consult with their attorney to develop a strategy for how to proceed in such circumstances.

About Richard Magnone

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