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 stay 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.
Illinois evictions are governed by the Forcible Entry and Detainer Act (the “Act”). That Act is designed to deal with the termination of the relationship of landlord and tenant and must balance the rights of both landlords, who generally are relying upon the rental income of their properties to pay their mortgages, and tenants, who are using the landlord’s property for their home or business.
In balancing the interests of landlords and tenants, the Illinois legislature created an expedited proceeding, focused upon who has the right to possession of the apartment or commercial space. Because of this, the Act specifically limits issues which may be raised in defense of an eviction proceeding. Section 106 of the Act specifically provides that “no matters not germane to the distinctive purpose of the proceeding shall be introduced” in defense of the proceeding.
The bottom line of the limitation to matters “germane” to the issue of possession is that the Courts have prohibited eviction defendants from raising such issues as a claim that the landlord owes the tenant money for a contract dispute between the parties or that the landlord has violated anti-trust laws. On the other hand, the Courts have specifically permitted defenses based upon the habitable condition of residential premises, violation of Chicago’s Residential Landlord and Tenant Ordinance and racial or other discrimination having motivated initiation of the eviction proceeding.
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.