'Unknown' occupants also can be evicted from rental

Posted10/6/2013 12:50 AM

Q. I own a rental property that I have been leasing to a woman the past couple years. I think she lost her job because she used to be on time with the rent, but over the past six months, she keeps falling further and further behind. It's now gotten to the point she is two months behind on the rent.

I decided I had to evict her so I went to the apartment to serve a five-day notice and discovered there are at least five people living there. I think her sister moved in with her three kids.

I've handled evictions by myself in the past, but I don't know how to deal with these extra people. I don't know their names so I can't name them in my complaint. If I get a judgment against my tenant, does that apply to the other people living there?

A. Presuming the original tenant is the only party on the lease, your defendants will be your tenant and "unknown occupants." You will pay an extra fee to have "unknown occupants" served. However, you will then ultimately obtain a judgment and Order of Possession against unknown occupants.

This is what protects you in the event you are required to proceed to an eviction. Without service and an Order of Possession on the unknown occupants, at the time of the eviction, the sheriff will only authorize the removal of the named party in the possession order.

With an Order of Possession against unknown occupants, the sheriff will authorize the removal of all parties in possession.

Q. We are way behind on our mortgage and have been sued by our mortgage company for foreclosure. We haven't done anything in the case and it now looks like they are trying to get a judgment against us. I have been trying to communicate with them that we were trying to do a short sale but no one really seemed to care.

We just received an offer on our home. It's pretty low but we would still rather do this than be foreclosed on. We are scared though that we won't have enough time to complete the sale before we lose the house. We were told over the phone the short-sale process could take 60 to 90 days and I don't think we have that long. Any ideas would be greatly appreciated.

A. I have one outstanding idea. Schedule an appointment with a real estate attorney immediately.

Most experts agree that a short sale will incur less damage to your credit than a foreclosure, so it's probably in your best interest to complete the sale. Of course, the short sale offer won't do you much good if you lose the property.

Keep in mind you have a redemption period of the longer of three months from the date of judgment or seven months from the date both of you were served. From a practical standpoint, this means you have at least that amount of time to complete your short sale. Your goal here is to delay the judgment date as long as possible so the short sale can occur.

One of the ways to accomplish this is to participate in the foreclosure lawsuit rather than just roll over and have a judgment entered. There are numerous defenses to a foreclosure suit. These defenses may not ultimately prevail; however, they can certainly delay the entry of the judgment, which is what you need to complete your sale. Speak to a real estate attorney immediately.

• 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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