Basic Eviction Defense Training

Transcription

1 Basic Eviction Defense Training

2 Volunteer Lawyer Courthouse Project enables volunteer attorneys to represent low-income tenants facing wrongful eviction Provides valuable litigation experience for attorneys Attorneys will receive support in and out of the courtroom Asking minimal commitment (but feel free to volunteer as much as you like!)

3 Applicable Law Overview of Court Process Trial: Basics and Possible Defenses Judgments Client interviews Negotiation and Settlement Contacts and Resources

4 735 ILCS 5/9-101 et seq

5 Governs the procedure for evicting tenants and obtaining judgments against them for unpaid rent. The sole means for settling a dispute over the possession of real property, Harper Square Housing Corp. v. Hayes, 305 Ill. App. 3d 955 (1 st Dist. 1999) general prohibition against self-help evictions

6 FED statute is in derogation of common law. FED court is considered a court of special and limited jurisdiction for that proceeding. Russell v. Howe, 293 Ill.App.3d 293 (2 nd Dist. 1997) As derogation of common law, FED statute requires strict compliance with the statute. But, also is remedial in nature and should be liberally construed so the remedy is effected. Nance v. Bell, 210 Ill.App.3d 97 (2 nd Dist. 1991)

7 765 ILCS 735/1

8 RUSA protects tenants from utility tap or LL s interference with the tenant s utilities A utility tap = tenant is paying not only for their electricity, gas, etc., but also the utilities for another apartment or common area of the building Knowing or intentional = triple damages

9 765 ILCS 720/1

10 Public policy prohibition against LL filing FED because Tenant complained to a governmental agency about the conditions in her unit. Clore v. Fredman, 59 Ill. 2d 20 (1974) Prima facie elements: 1. Tenant reported to governmental agency 2. Code violations found 3. Landlord was notified of the violations Beware: LL can defeat with some other reasonable business reason for evicting Tenant, e.g., building been condemned, needs to shut down to make repairs, Tenant didn t pay rent.

11 Requirements, Types, and Service

12 In most cases, the LL must serve the tenant with a termination notice before filing a lawsuit to recover possession of the premises. Exceptions: term of tenancy fixed, tenant has waived right to written notice, dangerous criminal activity

13 All notices: Must describe the premises and identify the apt. Watch for incorrect addresses and/or incorrect tenant on notice Must provide that the lease will terminate at some future date (time period does not begin to run until the notice is served properly).

14 Types of Notices: 5-Day Notice for nonpayment of rent (most common one) if rent is not paid in five days, tenancy will be terminated. Notice must include a legal demand for a sum certain. 725 ILCS 5/9-209 Count additional business day if 5 th day falls on weekend or holiday 10-Day Notice for violation of lease provision. Must include description of breach and no opportunity to cure. 735 ILCS 5/9-210

15 Week-to-week tenancy = 7 day notice Month-to-month tenancy = 30 day notice (also common) no reason needed, and must be served no later than 30 days prior to date of termination Minimum start date for valid notice is the day of week/month rent is due. Tenancy ends at midnight on the last day of notice period. Hoefler v. Erickson, 331 Ill. App. 577 (1 st Dist. 1947) 735 ILCS 5/9-207

16 Serving the Notice: Hand-deliver to the tenant Leave with someone 13 years of age and up who lives in the residence Send copy by certified or registered mail with return receipt requested Posting when no one is in actual possession (common mistake by landlords) American Management v. Carter, 392 Ill.App.3d 39 (3 rd Dist. 2009) Figueroa v. Deacon, 404 Ill.App.3d 48 (1 st Dist. 2010)

17 Landlord s Requested Relief, Service of Summons, etc.

18 LL can file for possession only or a joint action for possession and rent. Cannot file until there has been a written notice properly terminating the tenancy If service of summons by posting, can only file for possession (but, LL can amend to seek rent if tenant appears).

19 Service of Summons: return date must be at least 7 days from when summons was served Acceptable methods of service: Personal Service Substitute Service Service by special order of the Court (certified mail) Constructive Service (posting and mailing or publication and mailing) LL must sign affidavit

20 First Return or First Appearance, Meeting the Client, Settlement & Trial

21 Notify PSLS of the Friday you are planning to volunteer. Check for conflicts. Meet PSLS staff at RI Co. Courthouse at 12:45 p.m. on chosen Friday. Meet with interested & eligible tenant(s). If possible, attempt to negotiate and settle with LL. If not possible, and there is a meritorious defense, enter Appearance in case and set matter for trial based on your schedule. Generally trial is set for following Thursday. File a Certificate of Determination of Indigence to avoid fees.

22 Supreme Court Rule 13 was amended in 2013 to allow attorneys to file limited scope appearances regarding one or more specific aspects of a proceeding May withdraw on motion after completing the agreed scope of representation Oral motion to withdraw without prior notice, or Written Notice of Withdrawal Client has 21 days to file Objection to Withdrawal

23 2-615 Motions to Dismiss & Motions to Dismiss

24 2-615 Insufficient Complaint Landlord permitted in most cases to amend the complaint to fix deficiencies. Example: failure to attach the lease to complaint Lack of Subject Matter Jurisdiction Tenancy has not been terminated notice not given Attach affidavit of tenant

25 Often LL will insist on a quick trial date (and that is common); however, be prepared to ask and argue for more time if needed to complete discovery Many cases are resolved before trial, but a good number of cases involving pro se landlords do go to trial (they don t know when they re beat). Can request a jury trial, though uncommon practice in Rock Island County

26 Plaintiff has burden of proving his/her right to possession of the premises Like any other trial, proper procedures for evidence must be followed As in all other civil actions, plaintiff must first establish a prima facie case: LL has right to possession of the premises Defendant has possession of the premises Defendant violated an applicable law or breached agreement LL served written termination notice on Defendant If joint action, LL must establish amount of rent owed

27 Defenses must be germane. 735 ILCS 5/9-106 What defenses are germane? Plaintiff not a proper party/lacks capacity to sue Defendant has a claim under the Retaliatory Eviction Act Notice not served properly Notice does not give the proper number of days Plaintiff filed the FED action before the notice period ended

28 More possible germane defenses: Defendant owed no rent Defendant tendered all rent due before notice period expired Defendant tried to tender all the rent due before the notice expired but the LL refused to accept it Plaintiff failed to maintain the premises in compliance with building codes, reducing its value by more than the rent owed Defendant is withholding the amount of rent owed in compliance with the Rental Property Utility Services Act

29 More possible germane defenses when lease violation is alleged: Defendant never committed the violation The conduct does not constitute a material violation (if required by the lease) Plaintiff accepted rent that accrued after the plaintiff learned about the violation No reason given in notice, but has year lease Retaliation claims

30 Single Actions (possession only): If LL wins, he/she will get possession of premises plus costs Court can stay enforcement of judgment for a period of time If tenant wins, he/she entitled to possession of premises plus costs Joint Actions: If LL wins, entitled to possession and rent owed plus court costs LL can accept rent between entry of the judgment and expiration of the stay and still be able to enforce the judgment; but, cannot take rent after the stay expires and still get possession If Plaintiff does not show up to first appearance or trial, court should dismiss the case for want of prosecution.

31 Purpose: Collect information from client to evaluate case, give advice, and form a defense strategy (if there is one to form) Inform the client of rights of each party so he/she can make an informed decision Tenants may not have all relevant documentation with them in court. You may need to schedule another meeting with the tenant prior to trial to review his/her relevant documents and evidence.

32 Damages: Breach of Warranty of Habitability Violation of Rental Property Utility Services Act If the tenant wants to move Rent claims may be traded for possession (LL forgo rent owed in exchange for tenant moving) If tenant has a good claim for damages, that claim may be traded for rent-free time in the apartment until the tenant can move

33 Settlement options for move-out agreements: Continue until move out date, then dismiss Stipulated Order of Dismissal better option than entering an Agreed Order Agreed Order appears as judgment for LL on Judici and docket, which can create barrier for future housing, especially low-income housing

34 If the Tenant wants to stay More difficult to settle with the LL If the claim for damages is strong, can negotiate to offset rent claims and the tenant can start paying again and stay in the apartment Tenant may just pay the back rent owed and be allowed to stay in the apartment (will depend on the LL/Tenant relationship at the time of trial). Length of tenancy may play a factor

35 Thank you for your interest in the Volunteer Lawyer Courthouse Project we truly appreciate your dedicated service to lowincome members of the community If you have further questions, or require assistance during your participation in the Courthouse Project, please call any of the PSLS individuals listed in your Training Manual