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The Role of an Eviction in Defaulted Illinois Contract Sales

Written by Kreisler-Law-PC on . Posted in CCP, contract sale, eviction judgment, evictions, Forcible Entry and Detainer Act, Illinois Code of Civil Procedure, Illinois Forcible Entry and Detainer Act, installment contract for deed, Litigation, real estate transaction

When a real estate seller is willing to finance his buyer’s purchase of the property being sold with a relatively small down payment, it is common for the transaction to proceed by what is called a contract sale or an installment contract for deed. Under that form of transaction, the seller does not execute and record a deed when the transaction closes and possession of the property is transferred to the buyer. Instead, the parties execute a document under which the buyer agrees to make payments and to insure and maintain the property and the seller agrees when the seller has been paid as agreed, a deed will eventually be delivered.

When a buyer defaults under the contract, the seller is faced with the problem of how to terminate the contract and get his property back. The contract sale document will provide that after default and upon notice, the contract may be terminated and all prior payments forfeited. However, that does not put the contract seller back into possession of the property.

Restoration of possession requires the use of the Illinois Forcible Entry and Detainer Act, which is contained in the Illinois Code of Civil Procedure (“CCP”). Section 5/9-104.1 of the CCP requires that a demand be served on the buyer giving at least 30 days to satisfy the demand before suit may be filed. The case then proceeds like any other eviction, except that in entry of the eviction judgment, the court may satay the enforcement of the judgment for up to 60 days where more than 75% of the original purchase price remains unpaid but in cases where less than 75% remains unpaid, the Court is required to stay enforcement of the order for 180 days. The court may grant a shorter stay even where than 75% of the original purchase price remains unpaid, if the plaintiff can show that plaintiff had granted previous extensions of the time to pay or for other good cause shown.

Feel free to contact an Illinois attorney experienced in handling all aspects of real estate transactions and litigation at Kreisler Law if you have questions about sale of your Chicago area real estate or any other area of the laws governing real estate.

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

Written by Kreisler-Law-PC on . Posted in eviction court, Five Day notice, Illinois Eviction Statute, Illinois Forcible Entry and Detainer Act, Real Estate, Termination Notice

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.  Instead, they are informed by the eviction judge that the Illinois Appellate Court has held the real meaning of the Statute in 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.

 

Feel free to contact an experienced Illinois landlord eviction law attorney at Kreisler Law, if you have questions about how to properly serve eviction notices or any other area of the laws governing landlords and tenants.

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