Refresher on evicting a family member in Illinois

evicting family members in IllinoisI have discussed roommate, guest, and family member evictions in the past, however, based on the number of recent questions I receive about Illinois evictions of family members and close relatives, I thought a refresher might be in order.

So, you let your grandson move in to your home in Addison, Illinois after his last stint in rehab and he has now relapsed and is back on drugs and living in your basement with his girlfriend?  You let your cousin move in to your Norwood Park bungalow when he lost his job and now he won’t leave?  Your daughter just turned eighteen and won’t listen to you or your spouse and she refuses to pay rent and doesn’t plan on leaving your Park Ridge home any time soon?  You let your sister and her two adult kids move into the second floor of your Chicago two flat “just until she got back on her feet” and that was three years ago?

Do you have to go through the (horrible, costly, and time consuming) Illinois eviction process to get rid of these family members?  Yep.

But they never had a lease!  Do you still have to evict them? Yes sir.  If they have established a tenancy, they are not trespassers,  They may be relatives and they may not have ever paid rent, but at some point you voluntarily let them stay and when you did that, you created a tenancy.  If they get mail at the property, have a driver’s license with the property address on it, keep their things at the property, have a key to the property, sleep at the property regularly or semi-regularly, or just plain claim to live there and you permitted it, then they likely have a tenancy.  (Of course, all fact situations are different, so you always want to consult a landlord on this point).

Well, they never paid rent.  Do you still have to go to court to get them out? Absolutely.  Your eviction is a single action for possession and rent is not usually at issue.  (Usually, it is lifestyle, courtesy, house rules, and other non-monetary factors that are the underlying cause of a family member eviction.)  The fact that rent was never paid is totally irrelevant.

Can you just “change the locks and lock those family members out?  Not at all.  That would be illegal.  It would probably give your relative a nice fat lawsuit against you!

Can’t you call the police to throw them out as trespassers? Nope.  The police are unlikely to help.  They don’t want to be sued for a wrongful eviction.  That’s what would happen if they dispossessed someone with a tenancy.  The police deal with criminal matters, not civil matters.  Trespass is criminal.  Eviction is civil.  Someone with a tenancy is not a trespasser and the tend to police error on the side of caution when its unclear.  You could try the police, but I doubt you will have much success.  They typically don’t get involved in the middle of a family member dispute unless a criminal act (like an assault or battery) takes place.  In fact, there are times when someone who’s been locked out can get the police to force their way back in to the property!

Are you telling me that in America in 2013, I don’t have control over who can be in my home even when they don’t pay?  That’s what I’m telling you.  It is a fact.

In most circumstances, the family member is occupying the property under an oral month-to-month tenancy.  Usually, an Illinois 30 day notice is the proper method for terminating such a tenancy.  An eviction of a family member would be handled just like any other eviction in Illinois under the forcible entry and detainer statute.  Serve the notice.  Wait the statutory time period.  If the family member does not move, file an eviction case.  Obtain service of process.  Have a trial.  Get an order for possession from a judge.  Wait for the county sheriff to come out and evict the occupant.

The eviction of a family member is always a bad situation.  Obviously, it makes sense to make an attempt to avoid the legal system if possible.  After all, a family-member eviction involves a relative!  The legal system is not a fun place and is not an ideal place for family members to settle disputes.  Nonetheless, sometimes there is no choice but to bring an eviction action.

There is nothing particularly special about the fact that the defendant is a relative that would make the case “faster” or “more special” in a judge’s eyes than any other eviction.  However, relative evictions can be more complicated because of the emotions of the participants and because sometimes the facts can be convoluted (was there a lease? did they pay rent?) and this can actually make a family member eviction more tricky than the average eviction.

It makes sense to try to keep a level head and to conduct the eviction in a “businesslike” fashion to keep problems to a minimum.  Don’t let things get out of hand and be sure to involve the authorities (and possibly get an order for protection) if things get violent or dangerous.  An eviction attorney can sometimes act as a buffer between the property owner and the relative.  Always consult with an experienced eviction attorney when facing such a situation.

About Richard Magnone

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