John Roska: Step 2: When eviction cases head to court

John Roska: Step 2: When eviction cases head to court

Q: Can you explain for landlords the process for evicting someone? I'd like to know what landlords are supposed to do when they have a problem tenant.

A: Last week's column covered Step 1 of the eviction process — the notice. This week covers Step 2 — the court case.

Step 1 terminates the tenant's right to live in the apartment. A written notice "terminating the tenancy" is a prerequisite for the court case. If the tenancy hasn't been properly terminated, a judge can't hear the case, and it should be dismissed.

An eviction basically asks the tenant to leave. If a tenant won't go voluntarily after getting a notice, the only legal way to make them go is with an eviction order signed by a judge.

Going to court to get an eviction order — Step 2 of the eviction process — begins by filing a written complaint at the circuit clerk's office.

The law you sue under has been called the "Forcible Entry and Detainer Act." But, since that archaic term confuses nearly everyone, starting Jan. 1, it'll be renamed the "Eviction Act."

An eviction case resolves the dispute over who has the legal right to "possession" of the apartment. If the landlord wins, they're restored to possession of the premises.

An eviction complaint should state that the landlord owns or has some legal right to the property, that they leased that property to the tenant, that the tenant defaulted on the lease in some way and that the landlord is therefore entitled to possession of the premises.

After it's filed, the complaint and a summons setting a court date are served on the tenant. In most counties, that first court date will not be a trial. Instead, it's just the "first appearance," where the tenant can ask for a trial.

But, if the tenant doesn't show up, they lose. The landlord gets a judgment for possession and for however much money they asked for. In Champaign County, more than half of all eviction judgments are by default.

If the tenant shows up and "denies" the landlord's claim, a trial is usually scheduled for a later date. Ask the circuit clerk how your county does it and how much time there's likely to be between the first appearance and trial.

At a trial, the landlord must prove the basics contained in the complaint — the landlord's legal right to the property, a lease and the tenant's default.

In addition, the landlord must prove they completed Step 1 — that they terminated the tenancy by giving the tenant proper notice. A landlord who proves those basics will get an eviction order just about every time.

Eviction trials are rare, though. The last time I checked, only about 8 percent of Champaign County eviction cases go to trial. The other 92 percent are defaults or are settled. When there are trials, landlords usually win.If you're a landlord, and not a corporation, you can represent yourself in court, without a lawyer. But doing it yourself, without a lawyer — and without the protection against liability that a corporation provides — isn't a great idea.

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