Our mothers always told us, “If you can’t say anything good about someone, don’t say anything at all.”
Well then, what can we say about the Third District Illinois Appellate Court? I would remind you that this is the same appellate court that recently exercised its power by overturning the conviction of the 17-year-old kid who decided to empty his gun in a crowded hallway at Woodruff High School in Peoria, Illinois (only to end up with this fine young man going back to prison for an aggravated assault which he committed after his release). This is also the same reviewing court that opined that the Federal Fair Debt Collections Practices Act should apply to residential eviction matters (even though that was not one of the issues which the they were asked to decide in the appeal).
It should come as no surprise then that the Third District Illinois Appellate Court is making life as hard as it can for the small business person/landlord. In American Management Consultant, LLC v. Carter, 392 Ill. App.3d 39, 915 N.E.2d 411, 333 Ill. Dec. 605 (3rd Dist. 2009) this court reversed the eviction granted by the trial court where the landlord attempted service of a statutory 5-Day notice (for non-payment of rent) by posting it on the door after failing at several attempts to personally serve the tenant who refused to open the door – and the tenant actually admitted getting the notice.
Prior to this decision, the appellate courts recognized that when the tenant was purposely avoiding service of the notice, the landlord could utilize alternate means to serve notice ranging from posting, mailing, even verbal notice in some cases and reliance lease provisions where the tenant specifically acknowledged that service of notices by such means were proper. The trial courts were given a reasonable degree of discretion in determining if the manner in which service of the notice was given was reasonable under those circumstances. Thanks to the Third District Appellate Court, the trial courts won’t have that discretion anymore.
In the case that went up on appeal even though the tenant admitted to actually receiving the notice, somehow that did not constitute proper service in the wisdom of the Third District Appellate Court because the service was not strictly accomplished by one of the methods of service mentioned in Illinois Compiled Statutes Ch. 735, Section 5/9-211 which are: 1) Personal service on the tenant; 2) Personal service on a household member 13 years of age or older; 3) getting a return receipt from a certified or registered mailing (Sure, that’s likely to happen with the tenant that is not paying rent, right?); or 4) posting of the notice only if the landlord can prove that no one is in actual control of the premises (e.g., the tenant has moved out of the leased premises).
Just this past August, in Figueroa v. Deacon, WL 3359672 (1st Dist. 2010), the First District Appellate Court followed the ruling in Carter case by throwing out an eviction where the the notice was posted on the tenant’s door and slid under the door and once again the tenant admitted she actually received the eviction notice.
I can assure you that Prairie State Legal Services, Inc., as well as other similar “legal aid” services are well aware of this new case law authority in Illinois and the manner in which you accomplished service of your notice will be the very first thing they will look at.
So, the lesson to be learned here is make sure you personally serve your tenant or a household member at least 13 years old if the tenant still has stuff in the leased premise or you will lose in court after spending all of the time, effort and even legal fees to get there – not to mention that if your lease has a provision in it which says the prevailing party can recover its reasonable attorneys’ fees from the loser, you may end up having to pay your tenant’s attorneys’ fees and costs of suit.
So, I am asked all the time, “Well, what if the tenant is still living there, but the tenant and/or her family refuses to answer the door? How do you get proper service of the notice then?” My answer is, “That’s a very logical question. Just don’t expect a logical answer from the Illinois reviewing courts anytime soon.” The only answer you will get from the reviewing courts is that for so long as they can successfully avoid you, the tenant and the tenant’s family must be allowed live in your rental property without paying rent for as long as they like … yet another in a long line of examples of why Illinois is viewed as the most anti-business state in the nation.