John Roska: Eviction cases: Suing, settlements and the sealing of records

John Roska: Eviction cases: Suing, settlements and the sealing of records

Q: I withheld some rent to try to get my landlord to make repairs, and the landlord filed an eviction case against me. I don't want to stay, so I'm happy to move. But I don't want an eviction on my record, or have it mess up my credit. How should I deal with this?

A: Once a court case is filed, it's a public record, which anyone can see. Eviction records can be sealed, but it's not automatic, and rarely done.

Any decent landlord screens tenants. Even if they won't buy a credit report to screen, free websites will tell them if you've been sued or evicted.

For example, just by going to Judici.com you can search the court records of 65 Illinois counties. Counties not on Judici usually have their own site; Champaign's is cccircuitclerk.com.

Some criminal records can be expunged or sealed. Expunged records are physically destroyed so nobody can see them. The general public can't see sealed records, but some government people can. Very few civil records, though, can be sealed.

Evictions are civil cases. The eviction law says a judge "may" order an eviction file sealed if the landlord's case "is sufficiently without a basis in fact or law." That "may include lack of jurisdiction," which might occur if the landlord blows the eviction notice (none; wrong one; or improperly served).

If the eviction case lacks the required legal or factual basis, a judge must then decide if sealing the record "is clearly in the interests of justice," and those interests outweigh "the public's interest in knowing about the record."

A judge "shall" seal an eviction court file for an eviction "brought against a tenant who would have lawful possession of the premises but for the foreclosure on the property."

I haven't heard of any eviction files actually being sealed, so sealing is not a common or easy fix. If it's too late to avoid a court case, and the effect of a public record, avoiding an eviction judgment is probably the best damage control. Landlords sometimes settle by dismissing the case if you're out by a deadline. The faster you're out, the better your chances for that kind of settlement.

In that kind of settlement, make sure you still go to court. Then, make sure that settlement is either presented to the judge, or that your case is simply continued to see if you move out. Many a tenant who thought they didn't have to go to court because they'd worked things out with their landlord have been burned to find out the landlord got a default judgment against the tenant.

Finally, about repair and deduct: Illinois law permits it, but it requires that you follow specific steps very carefully. For example, you can't deduct more than one-half of one month's rent, and you must repair, but can't do the work yourself.

If you do it right, you have a defense to an eviction case for nonpayment of rent. An eviction case you actually win shouldn't be a black mark on your record, but that's all up to a prospective landlord.

John Roska is a lawyer with Land of Lincoln Legal Assistance Foundation. You can send your questions to The Law Q&A, 302 N. First St., Champaign, IL 61820. Questions may be edited for space.

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