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posted: 10/7/2012 1:00 AM

Owner cannot turn off tenant's utilities during eviction process

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Q. I have heard you answer tough landlord questions so I am hoping you can help. We have a tenant in our house who has broken the lease by having a pet, not paying rent and not moving out despite an expired lease. We have sent her two official eviction notices but have not yet paid for a lawyer to start the court eviction process. Though she does not pay rent, we are paying her utility bills as per the lease.

I understand that she could sue us for turning off utilities. Is this correct? Is there any way we can get out of the obligation to pay her utilities without paying for all court costs? Is there a cheaper way to evict without hiring a lawyer? Is there a website or book you would recommend to help us? We are in the process of listing the house for short sale as we can no longer make payments on the mortgage so I don't know how this will affect the presence of a "squatter."

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A. So many questions. Let's start from the top. You indicate the lease has expired. I presume you mean the term of your written lease has expired. Presuming you have not accepted any rent payments since the end of the written lease, you could proceed with filing an eviction action without any further notice. Many folks file and prosecute eviction actions on their own. Your costs would be the filing and sheriff's fees, probably around $250.

In the event you accepted rent payments after the written term was up, you created a month-to-month tenancy, which may be terminated by either party on 30-days notice. You indicate no rent is being paid and there is a pet at the property in violation of the lease. A five-day notice would be required before you could proceed on an eviction based upon failure to pay rent. A 10-day notice is required if the basis of your eviction is violating a provision of the lease other than failure to pay rent.

So, to review. If the lease term is up and you have not taken any rent since, you may file the eviction now. If you have created a month-to-month tenancy, either a five-day or 10-day notice must be served prior to filing suit.

Regarding the utility bills, if the lease provides you will furnish utilities, you cannot unilaterally shut them off. That is considered self-help and is in violation of Illinois law.

The only other method of removing a tenant is through negotiation. Landlords on occasion entice their tenants to leave by offering cash or other incentives in return for the tenant vacating on or before a certain date. Often, this is cheaper than the legal route, which can take six weeks or more and can get expensive. Of course, having a tenant live in your property without paying rent and running up your utility bills can get pretty expensive also.

By the way, if your written lease provides that in the event of a lawsuit you may recover costs and attorneys fees, you must ask for these costs and fees in your complaint. The court will generally award these costs and/or fees as part of your judgment so long as they are authorized in the lease.

An important part of all this is the viability of your tenant. Is your tenant employed and are the prospects of collecting on a judgment good? If so, filing suit probably makes sense. Or, is the tenant unemployed with no assets, which would probably result in you never being able to satisfy your judgment? In that case, you may be better served using the money you would pay for court costs and an attorney on enticing the tenant to leave voluntarily.

• Send your questions to attorney Tom Resnick, 345 N. Quentin Road, Palatine, IL 60067, by email to tdr100@hotmail.com or call (847) 359-8983.

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