Get it in writing! Oral agreements are valid, but hard to prove

Q. I was renting a condominium from a guy for about a year and a half. Halfway through my second year, I got the opportunity to buy a house from a relative. I talked to my landlord and we agreed if I paid him for the following month, he would let me out of the lease. The lease was in writing.

I paid him the extra month’s rent and moved out. I didn’t hear from him for about two months. Then, I got an email from him saying he has not been able to rent the condo and I owe him another two months. I called him and of course he claims we never had an agreement. And, as I imagine you guessed, I did not get our agreement in writing.

Anything I can do here? This guy is absolutely lying. We had an agreement. I just think he expected he would be able to rent the place again quickly and when that didn’t happen, he walked back on our agreement.

A. As I have indicated in this column many times, when you reach an agreement, whatever the circumstances, get it in writing! You may not need it, but it will never hurt to have it.

Your worst case scenario here is you find yourself in front of a judge one day arguing why you don’t owe this guy any money. Unfortunately, he has the documentation on his side, that being the written lease. To prevail, you will need to overcome the presumption that you are responsible for the months in question.

Any emails validating the agreement? Any witnesses to the agreement? If there was no correspondence from him for the two months after you vacated the unit, that would appear to suggest he felt you had an agreement. Remember, oral agreements are valid. It’s just that they are hard to prove. As this is a civil matter, the case is determined by the preponderance of the evidence. All you would need to do is convince a judge that your position is 51% more likely to be accurate that his position.

Also, the landlord has a duty to mitigate his damages, meaning he must make a reasonable effort to rent the unit after you left. Again, if you are standing in front of a judge, make him produce evidence that he made this effort.

I don’t believe he would bring a lawsuit over this, so your best strategy might be to remind him of your agreement and make it clear you have no intention of paying him anything further. It will cost him time, money and effort to bring a lawsuit against you with no guaranty of victory. He may just be fishing to see if he could easily extract a few more bucks from you.

Q. I own a small commercial property which I have rented to a woman for the past couple years. The lease is with her company and she also signed a personal guaranty.

She has always been timely with her rent payments, however, all of a sudden, since June, I have not received any rent. I have gone to the property but she is never there. I do not have a home address for her and she never answers her phone or email.

I want to serve her a five-day notice and start an eviction case. I was told I must serve her with the five-day notice. How can I do that if she is never at the property and I don’t know where she lives?

A. The Business Corporation Act of 1983 provides you a remedy. First, check the Secretary of State’s website to determine the registered agent of the corporation. This may very well be your tenant, however, the statute requires a street address for the registered agent. Make a reasonable effort to serve the registered agent at the address designated on the website.

If this fails, there is also a provision in the Business Corporation Act that allows you to serve the Secretary of State with your notice. At this point, I might suggest retaining an attorney to proceed, though serving the Secretary of State is not complicated. There is a form that must be completed and a small fee that need to be delivered to the Secretary of State’s office in Chicago or Springfield. Presuming you follow the directions in the Act, service can be obtained on your tenant without actually locating her.

• Send your questions to attorney Tom Resnick, 910 E. Oak St., Lake in the Hills, IL 60156, by email to tom@thomasresnicklaw.com or call (847) 359-8983.