Tenants Defenses to Eviction Notices in Illinois

If you're a tenant facing eviction, learn the grounds to fight your eviction to win the right to stay in your rental unit.

In Illinois, a landlord can evict a tenant for a number of reasons, including not paying rent or violating a portion of the rental or lease agreement. However, a tenant may be able to prove that the eviction is not justified, or was done in some illegal manner, and subsequently delay or prevent an eviction from happening. This article will summarize the legal defenses a tenant may be able to use to fight an eviction in Illinois.

The Eviction Process in Illinois

Evictions in Illinois are regulated by the Illinois Code of Civil Procedure, and landlords must carefully follow these procedures in order to evict a tenant. There are two main reasons a tenant may be evicted: not paying rent on time or violating a portion of the lease or rental agreement.

If the tenant is being evicted for not paying rent on time, the landlord must give the tenant five days' notice to pay the rent (this is called a notice to quit or notice to pay rent or quit). If the tenant does not pay the rent within the five days, then the landlord can proceed with filing an eviction lawsuit, also known as a forcible entry and detainer suit in Illinois (see 735 Ill. Comp. Stat. § 5/9-209).

If the tenant is being evicted for violating a portion of the lease or rental agreement (for example, by having a dog when no pets are allowed), then the landlord must give the tenant ten days' notice to move out of the rental unit. If the tenant does not move out of the rental unit within ten days, then the landlord can proceed with filing an eviction lawsuit (see 735 Ill. Comp. Stat. § 5/9-210).

The landlord must file the eviction lawsuit, or forcible entry and detainer lawsuit, in the courthouse of the county where the rental unit is located. The tenant will then receive a copy of the complaint and a summons from the courthouse with a hearing date for the eviction lawsuit. If the tenant chooses to fight the eviction, the tenant must appear at the hearing. If the tenant chooses, the tenant can file an answer with the court, before the hearing date. Filing an answer is not required, though, under Illinois law (see Ill. Rules on Civil Pro. 181(b)(2)) . At the eviction hearing, the tenant will need to tell the judge all the defenses the tenant wishes to use to fight the eviction. At that time, the judge will make a final decision about whether the eviction is lawful and whether the tenant has to move out of the rental unit (see 735 Ill. Comp. Stat. § 5/9-106).

For more information about the eviction process, see the article Forcible Entry and Detainer Actions (Evictions) at IllinoisLegalAid.org.

Keep in mind that it might not always be worth it to fight an eviction because it can be costly and take quite a bit of time. A tenant who loses the eviction case could end up paying the landlord's court and attorneys' fees and receive a negative credit rating. Depending on the situation, it might make more sense to try and negotiate with the landlord, especially if you only need a few more days to pay rent or move out. Many communities have free or low-cost mediation services that handle landlord-tenant disputes; local resources are available through the website mediate.com and the American Arbitration Association. The mediation faqs on the Nolo site provide more information on the subject.

Tenant Defenses for Fighting an Eviction in Illinois

Several defenses, or legal grounds, are available to tenants who want to fight an eviction in Illinois. Here are some of the more common ones.

Landlord Evicted Tenant Using "Self-Help" Procedures

It is illegal for a landlord to try to evict a tenant without a court order. This type of eviction is often referred to as a "self-help" eviction, and it can include such actions as shutting off utilities (see 765 Ill. Comp. Stat. § 735/1.4) or changing the locks on the door of the rental unit. If the landlord tries to evict the tenant through one of these methods, without a court order, the landlord could owe the tenant damages. See the Nolo article Illegal Eviction Procedures in Illinois for more information.

Landlord Did Not Follow Proper Eviction Procedures

Landlords in Illinois must follow the proper procedures for evicting a tenant. For example, the landlord cannot file the eviction lawsuit with the courts until the landlord has given the tenant a notice to quit and the proper time frame has elapsed, either five days or ten days depending on the reason for the eviction (see Avdich v. Kleinert, 370 NE 2d 504 (1977)). A landlord who does not follow the proper procedures in evicting the tenant (for example, by filing the eviction lawsuit too early), will have to start the eviction process over from the very beginning. The tenant can use evidence that the landlord did not follow legally-required procedures as a defense to the eviction.

This defense will not stop an eviction completely if the landlord is justified in evicting the tenant. The tenant will just have more time to live in the rental unit before being evicted.

Tenant Has A Legal Defense for Not Paying Rent

A tenant who is being evicted for not paying rent may have a few defenses.

Tenant Has Paid All Rent Due and Owing

If the landlord gives the tenant a five-day notice to quit for not paying rent, then the tenant has the option to either pay the rent in full or move out of the rental unit during those five days. If the tenant pays the rent in full during the five days, the landlord cannot proceed with the eviction lawsuit (see 735 Ill. Comp. Stat. § 5/9-209). If the landlord proceeds with filing an eviction lawsuit anyway, the tenant can use the payment of rent during the five days as a defense to the eviction.

Landlord Failed to Make Repairs at Rental Unit

In Illinois, every lease or rental agreement has an implied promise that the rental unit will be safe and sanitary. If a rental unit is not fit for tenants to live in, the landlord has an obligation to make repairs in the rental unit. There is no set housing standard in Illinois for rental units, but all rental units must adhere to city housing codes, when applicable, and must be safe and sanitary. For example, an apartment must have a working heat source. If the landlord is notified of needed repairs and fails to make the repairs, a tenant can use the landlord's failure to make the necessary repairs as a defense against an eviction for nonpayment of rent (see Glasoe v. Trinkle, 107 Ill.2d 1 (1985)and Jack Spring, Inc. v. Little, 280 NE 2d 208 (1972)).

For more information, see the Nolo articles Tenant Rights to a Livable Place and Illinois Tenant Rights to Withhold Rent or "Repair and Deduct."

Landlord Is Evicting Tenant in Retaliation of Tenant's Legal Actions

It is illegal for a landlord to evict a tenant because the tenant made a complaint to a government authority about housing code or health code violations (see 765 Ill. Rev. Comp. Stat. § 720/1). Evicting a tenant for this reason is called retaliation. If a tenant makes a good-faith complaint to a government agency about the living conditions of the rental unit, and the landlord tries to evict the tenant, then the tenant can use retaliation as a defense to the eviction.

See the Nolo article Illinois State Laws Prohibiting Landlord Retaliation for more information.

Landlord Has Discriminatory Basis for Evicting Tenant

The federal Fair Housing Act makes it illegal for a landlord to discriminate against a tenant based on race, religion, gender, national origin, familial status (including children under the age of 18 and pregnant women), and disability. Further, the Illinois Human Rights Act prohibits discrimination based on those same characteristics and adds one other characteristic: sexual orientation. If a landlord evicts a tenant in violation of the federal Fair Housing Act or the Illinois Human Rights Act, then the tenant can use the discrimination as a defense against the eviction. See the Nolo article Housing Discrimination Prohibited by State and Local Law for more on laws prohibiting discrimination against tenants.

Tenant Resources For Fighting an Eviction in Illinois

For more general information on evictions and tenant rights, see the Your Rights as a Landlord or Tenant in Illinois pamphlet published by the Southern Illinois University School of Law and the Landlord and Tenant Rights and Lawspamphlet published by the Illinois Attorney General. Illinois Legal Aid also has useful information about evictions and will provide more information for eviction processes in your county based on your zip code. Tenants who live in federally assisted housing should also check out the tenant resource page at HUD.gov.

Evictions in Chicago

Chicago has a slightly different set of eviction procedures, one of which is that the tenant has the right to fix a lease violation upon receiving a ten-day notice to quit because of a lease violation. If the tenant fixes the violation within the ten-day time frame, the landlord cannot proceed with the eviction. This option is only available in Chicago. Tenants living elsewhere do not have the right to fix a lease violation and must move out upon receiving a ten-day notice to quit, unless they are going to challenge the eviction.

For more information on defending an eviction lawsuit in Chicago, see the Chicago Bar Association Eviction article at the Chicago Bar Association and the self-help section at the Cook County Courthouse. The Chicago Building Code can also be found online at the City of Chicago's website.

Find Your Specific County Courthouse

Eviction lawsuits must be filed in the county where the rental property is located. It can be very helpful to a tenant to find out more about how the courthouse operates when defending against an eviction lawsuit. The Illinois Circuit Court website has a listing of each county courthouse. Sometimes court websites will have useful forms and information for tenants to use when defending against an eviction lawsuit.

When to Hire an Experienced Tenants' Lawyer

If you have a complicated eviction case or defense or the landlord has already retained a lawyer, you should probably also contact a lawyer. A lawyer can handle the whole case or give you advice on how to proceed. A lawyer can also let you know how likely you are to win your case. You may especially want to hire an attorney if you are confident of your case and your lease or rental agreement entitles you to attorney fees if you win in court.

For advice on finding a good lawyer, see the Nolo article How to Find an Excellent Attorney.

Also check out Nolo's Lawyer Directory for Illinois lawyers who specialize in landlord-tenant law.

If you qualify for legal aid you may be able to get some help. See Illinois Legal Aid for more information on resources available in Illinois.

More Information on Evictions and Terminations

For more articles on the subject, see the Evictions and Terminations section of Nolo.com. If you want to learn about how tenant bankruptcy affects an eviction, see the Nolo article Bankrupt Tenants.

For more information on tenant rights, see Every Tenant's Legal Guide, by Janet Portman and Marcia Stewart (Nolo).

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