What constitutes a lease?
The relationship between landlord and tenant arises from an agreement called a lease by which one party occupies the real estate of another with the owner's consent. No particular words are necessary to create a lease, but generally the terms of a lease include a description of the real estate, the duration of the agreement, the rent, and the time of payment. In Illinois, a lease need not be in writing unless it is for a term greater than one year. Although the terms of an oral lease may be difficult to ascertain, a party may be bound to the terms of an oral agreement just as much as a written one.
What types of leases are there?
The most common form of lease is a written agreement which spells out all of the terms and conditions binding upon both parties. If a lease is not in writing, it will probably be a periodic lease, which is one without a definite term. The period is generally determined by the frequency of the rental payments; for example: week to week, month to month, year to year.
How is a lease terminated?
If a lease is not for a specific term, it may be terminated by either party with proper notice.
a) For year-to-year tenancies, other than a lease of farmland, either party may terminate the lease by giving 60 days' written notice at any time within the four months preceding the last sixty days of the lease.
b) A week-to-week tenancy may be terminated by either party by giving seven (7) days' written notice to the other party.
c) Farm leases generally run for one year. Customarily, they begin and end in March of each year. Notice to terminate must be given at least four months before the end of the term.
d) In all other lease agreements for a period of less than one year, a party must give thirty days' written notice. Any notice given should call for termination on the last day of that rental period.
When a lease is written, the expiration date is usually stated in the document. No termination notice is necessary in such a case.
What if the tenant violates or breaches the lease?
The most common breach of a lease is non-payment of rent. In this case the landlord must serve a five-day (5) notice upon the tenant. Five days after such notice, the landlord may commence eviction proceedings against the tenant. If, however, the tenant pays the rent within those five days the landlord may not proceed with an eviction. The landlord is not required, however, to accept rent that is less than the exact amount due. If the landlord accepts a tender, it may effect the rights to proceed under the notice.
How does one go about serving a notice on a tenant?
Service of notices is governed by 735 ILCS 5/9-211. They can be served in one of three ways in most cases:
--Personal service on the tenant;
--Personal service on someone at the tenant’s home, more than 12 years old;
--Mailing to the tenant by certified or registered mail, with a return receipt from the tenant.
If no one is living at the tenant’s house, the landlord may post the notice.
What should be included in the notice? The notice must describe the premises well enough so they can be identified. The notice must say that the tenancy will be terminated. It does not have to use the word “terminated”, but it must make clear that at the end of the notice period, the tenant will lose rights to the home.
When should a notice be served?
Notices may not be served until after the default, if the notice is based on a default. Regardless of the date on the notice, the notice period does not begin to run until after service. Notices do not have to give the date on which the tenancy will terminate. They must give the number of days after service of the notice that the tenancy will terminate. The landlord may give more days than the statutory requirement. Even after the tenancy is terminated, the landlord still must proceed with a court order for the eviction. It is the termination of the tenancy that gives the landlord the right to file a court action seeking eviction.
When can an eviction action be filed in court?
Until the full notice period given for the notice runs, the landlord cannot file in court for an eviction action. The notice period is counted starting with the day after the notice is served. The last day of the period is also excluded if it falls on a Saturday, Sunday, or holiday. If the tenant was served by mail, the notice period starts from the day after the tenant actually received the notice.
Describe a landlord’s 5-day eviction notice?
A five-day notice is given for nonpayment of rent. It must state the amount of rent due and give five days for the tenant to pay the rent. The notice can only ask for the rent that is actually due at the point the notice is issued. The notice must give a definite amount of rent as due and owing. Only rent can be included in the notice.
What if a tenant offers to pay the rent after service of the 5-day Notice?
If the tenants can pay the rent due, they should tender the money. Tender is when a tenant offers the rent due to the landlord. Ideally, tender should be made in the presence of witnesses. The tenant should get a receipt if the landlord accepts the money. Tender must be made before the five days are up. Tender will defeat the eviction action even if the landlord refuses the money.
Describe a landlord’s 10-day eviction Notice?
A 10-day notice is given for violating any lease provision. There is no right to cure a 10-day notice under state law. There is a right to cure under some ordinances. Acceptance of rent for a period after the notice is issued can waive the notice.
Describe a landlord’s 30-day eviction Notice?
Where there is a month-to-month tenancy, the landlord may terminate it at any time by giving a thirty-day notice. The landlord does not need to give any reason for terminating the tenancy.
Describe a landlord’s 60-day eviction Notice?
Landlords are required to give a minimum of 60 days’ notice of the termination of a year-to-year lease, and no more than six months’ notice.
What rights does a tenant have to sublet or assign the lease?
Often printed leases prohibit the tenant from subletting the premises without the written consent of the landlord. Such consent cannot by withheld unreasonably, but the prohibition is enforceable under the law. If there is no such prohibition, then a tenant may sublease or assign his lease to another. In such cases, however, the tenant will remain responsible to the landlord unless the landlord releases the original tenant. A breach of the sub-lease will not change the initial relationship between the landlord and tenant.
What remedies does a tenant have if a landlord fails to meet its duties?
If the landlord has breached the lease by failing to meet the duties as a landlord under the lease, certain remedies arise in favor of the tenant.
a) The tenant may sue the landlord for damages sustained as a result of the breach.
b) If a landlord fails to maintain a leased residence in a livable condition, the tenant may be able to vacate the premises and terminate the lease under the theory of "constructive eviction".
c) Also, the failure of a landlord to comply substantially with local housing codes may be a breach of the landlord's "implied warranty of habitability" (independent of any written lease provisions or oral promises) which the tenant may assert as a defense to an eviction based on the non-payment of rent. However, breach by landlord of local housing codes does not automatically entitle a tenant to withhold rent. The obligation to pay rent continues as long as the tenant remains in the leased premises and to assert this defense successfully, the tenant will have to show that his damages resulting from landlord's breach of this "implied warranty" equal or exceed the rent claimed due.
A landlord's breach and tenant's damages may be difficult to prove and because of the limited and technical nature of these rules tenants should be extremely cautious in withholding rent and should probably only do so after consulting an attorney.
Are there any types of lease provisions that are not allowed?
It is unlawful for a landlord to discriminate in the leasing of a dwelling house, flat or apartment against prospective tenants who have children under the age of 14 years. Provisions in a lease agreement which exempt a landlord from liability for damages to persons or property caused by the negligence of the landlord are viewed as being against public policy and are therefore unenforceable. Under certain circumstances in the event of non-payment of rent the landlord may hold the furniture and personal property of the tenant until the tenant pays past rent.
How should a tenant’s security deposit be handled?
A tenant is usually required to deposit with the landlord a sum of money prior to occupying the premises. This is usually referred to as a security deposit. This money is deemed to be security for any damage to the premises or non-payment of rent. The security deposit does not relieve the tenant of the duty to pay the last month's rent. It must be returned to the tenant upon vacating the premises, if no damage has been done beyond normal wear and tear and the rent is fully paid. If a landlord fails to return the security deposit promptly, the tenant can sue to recover that portion of the security deposit to which the tenant is entitled.
A landlord leasing residential real estate containing five or more units who receives a security deposit may not withhold any part of that deposit as compensation for property damage unless he furnishes to the tenant, within thirty days of the date the tenant vacates, a statement of damage allegedly caused by the tenant and the estimated or actual cost of repairing or replacing each item on that statement. If no such statement is furnished within 30 days, the landlord must return the security deposit in full within 45 days of the date the tenant vacated.
If a building contains 25 or more residential units, the landlord must also pay interest on the deposit from the date it was paid, if held more than 67 months. (Interest is calculated at the rate paid by the largest bank in Illinois, as determined by total assets, on a passbook security account.) Landlord and tenant matters can become complex. Both landlord and tenant should consult an attorney for assistance with particular problems.
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The Olson Law Firm, LLC
312-629-9900
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