I have a tenant that said he mailed rent in July and August for those months but didn't (in writing). He did mail 2 checks in August that he said were for September and October rent. Once I noticed the discrepancy, the missing $1,000, I asked for payment but the tenant said that I noticed too late. I served the 5 day notice as required by Illinois law. The judge basically said that since I accepted checks that were earmarked for September and October that I couldn't use the missed payments for July and August to get forcible entry and detainer but would have to go to small claims for that. Keep in mind that I served the 5 days notice on 10/17 and that $1,000 was due at all times (in real estate, payments get applied to oldest invoices first so the earmarked checks were applied to the missing July and August rents). Since that 5 days notice, the tenant hasn't paid a dime so the total is now at $2650. The judge dismissed without prejudice. Can someone explain what the legal precedent is for what the judge was saying? My lawyer had no clue and I'm still stumped. I now have to redo the entire process starting with a 5 days notice and I don't know if I'm allowed to include the entire $2650 that was legitimately never paid. Thank you in advance.
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Is skipped rent unnoticed in a timely manner legally forfeited by landlord?
- Thread starter Ruski1106
- Start date
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Taxing Matters
Overtaxed Member
Let me start by saying that landlord tenant law varies from state to state and I'm not familiar with all the details of Illinois law on it. But basically the issue is one of waiver. When you start to go for eviction, you are saying the tenancy is over and want the tenant out. So if then tenant doesn't pay June rent and go for eviction, you shouldn't accept rent for July and let him stay during July because then you are saying you don't want him out. That then cuts off the eviction action for June. You've let him stay another month. You might still sue for the rent owed for June and get a judgment against him, but the eviction action is dead. Now, if he then doesn't pay for August you could start an eviction proceeding for August, but then don't take any more rent from him if you want to get him out or you'll kill the eviction action again.
Last edited:
justalayman
Senior Member
TM, how are you on Illinois law?
Op states he acted as Illinois law requires. I presume that means he’s in Illinois.
Op states he acted as Illinois law requires. I presume that means he’s in Illinois.
Taxing Matters
Overtaxed Member
Not any better (or worse) with Illinois law. Not sure why I had Ohio in my head. I've fixed my post accordingly.
not2cleverRed
Obvious Observer
You were pursuing an eviction. You accepted money after serving the 5 day notice. That is why you cannot get an eviction for that particular reason.
The judge told you that you can still recover the money in small claims when denying your petition. This does not mean that you have forfeited the right to recoup that rent; it means that you have to go after it in small claims.
Since your tenant has not paid November's rent, you serve him 5 days notice and try for an eviction again. The previous denial is irrelevant, because this is for a different month. Do not accept any money after serving the notice unless it is for the entirety of what is owed, otherwise you will be facing the same situation again.