A Word Caution for Illinois Landlords – “Actual Possession” Doesn’t Have its Common Sense Meaning in an Illinois Eviction

Many Illinois landlords have been surprised to learn for the first time when they appear in eviction court that the words of the Illinois Forcible Entry and Detainer Act (the Illinois Eviction Statute) and the Proof of Service sections of common printed forms of tenancy termination forms regarding Service Posting do not in fact have their common sense meaning.  Section 5/9-104 of the Illinois Eviction Statute and common published forms provide that notices may be served by “posting the same on the premises” under the situation where “no one is in actual possession of the premises.” 

Using the common meaning of the terms, many Illinois landlords have concluded that if when they go to serve a Five Day or other notice on the tenant and no one is home, then they can serve the notice by simply tacking it up or “posting” the notice on the front door or entry of the premises.  They proceed to sit out the notice period and then file suit for eviction.  Only when they finally appear before the judge at trial (often five weeks or more after visiting the tenant to serve the notice) do they find out that the Eviction Statute simply does not mean what it appears to say.  They are instead informed by the eviction judge that  the Illinois Appellate Court has held the real meaning of the Statute is that a Five Day or other termination notice may be served by posting it only if the tenant has actually moved out.  Service by posting is not good service where the tenant has not actually moved out of the premises but is avoiding service or is simply not home when the landlord comes to call.

Unfortunately, the consequence to the landlord is severe.  His suit for eviction is dismissed, and he must start again from square one, with the service of a new Notice to Terminate the Tenancy.  The only consolation to Cook County landlords is that many of the Cook County eviction judges are willing to provide in the dismissal order that the filing fees of a new action based upon a newly served Termination Notice are waived.