The article will also explain whether or not there are any significant changes to Illinois Real Estate Laws for 2024. The most substantial change in Illinois Real Estate Law is the Illinois Real Property Transfer on Death Instrument Act, which took effect in 2022. This allows for a transfer on death instrument (“TODI”) to not only convey residential real estate properties upon an owner's death to a named beneficiary but also will allow an owner of commercial real estate properties to convey the commercial real estate through a TODI upon the death of the owner to the designated beneficiary. Both options allow for the avoidance of the Illinois Probate Courts.
Illinois Landlord and Tenant Law
A relationship where one leases “rents” real estate from a landlord (the person who owns or controls a property) and a tenant (one who rents from a landlord) through a lease agreement (a contractual agreement between landlord and tenant) is referred to as Illinois landlord-tenant law. The terms of the lease will generally set out the length of time the tenant will rent the real property from the landlord. The terms will also state a description of the real property, the amount of rent that must be paid and the date in which the rent is due. Oral leases are on the same ground as oral leases. The lease will also lay out different clauses that will allow or permit certain activities on the premises.
Lease Termination
If a lease does not state a specific durational amount of time, it can be terminated by the landlord or tenant upon proper notice. The following are the most common types of tenancies in Illinois and when they may be terminated by the parties:
- For year-to year lease agreements (durational for one year) either the landlord or the tenant may end or terminate the lease by serving 60 days written notice on the other party, the notice must be within 4 months before the last 60 days of durational time left on the lease agreement.
- For week-to-week lease agreements (durational from week to week) either the landlord or tenant may end the lease agreement by serving seven days written notice on the other party.
- For Farm leases (leases for farms durational for 1 year) written notice to end the lease agreement must be served by the landlord or tenant 4 months before the lease it set to expire.
- For leases that are less than one year one party either the landlord or tenant may end the lease agreement by serving the other party with 30 days’ notice, but the end of the tenancy must be on the last day of that period of duration.
Lease Termination for Landlord or Tenants Breach of the Lease
When a tenant breaches or in other words “violates” the lease agreement and does not pay rent that the tenant owes the landlord, the landlord may serve a 5-day written notice upon the tenant. If the tenant pays the back owed rent within the 5 days, then the landlord cannot continue with an eviction action against the tenant. If the tenant does not pay rent, then the landlord can execute an eviction action against the tenant in an Illinois Court in the county where the real property that is subject to the lease agreement is located.
When a tenant breaches a provision or clause of the lease, the landlord must serve a 10 day’s notice on the tenant, after the 10 day notice expires the landlord may continue with his action for eviction against the tenant in an Illinois Court in the county where the real property that is subject to the lease agreement is located.
When is it Permitted for a Tenant to Break a Lease in Illinois?
In Illinois under 765 Ill. Comp. Stat. §750/15 victims such as tenants and their children being victims of physical or sexual abuse may break a lease as long as there exists an immediate risk of continuing violence or abuse within the real property that is subject to, the lease agreement. In this situation a tenant can terminate the lease agreement with the landlord, as long as the tenant can provide evidence to support their claims such as witnesses, doctor’s reports, police reports, photographs, etc.
Stronger Rental Protection Laws for Tenants of Chicago Under the Chicago Residential Tenant Landlord Ordinance “CRTLO”
What if my rental property in Chicago has a problem which puts my health safety and welfare in danger? What are my Rights under the CRTLO?
If you live in Chicago, under the Chicago Residential Tenant Landlord Ordinance “CRTLO” if there is a problem on the real property that is subject to the lease agreement between the landlord and tenant that puts the tenants safety, health, or welfare in danger, or the utilities do not work and the tenant informs the landlord either verbally or in writing of the condition and the landlord does not fix the problem within 72 hours, the tenant can end the lease and further, the tenant has 30 days to vacate the premises, and the tenant is no longer liable for any rent under the lease agreement.
What do I do if my landlord has kicked me out of my apartment and we never went to court? What are my Rights under the CRTLO?
Under the CRLTO if your landlord illegally or wrongfully evicts you by changing the locks on the rental property, threatening you or assaulting you, turning off the utilities, or removing your items from the home you may sue the landlord in Cook County Court in Chicago. You may obtain re-instatement of your residency inside of the property rental, sue for damages, obtain attorney’s fees. Your landlord must serve you with documents and take you to Court in order to evict you from the rental property if your landlord did not do that then you have a right to sue. No matter what your landlord tells you, if you were never served with notice of eviction, biyou have been illegally evicted from your rental property if you were never served.
My Heat or Air Conditioning does not work in my rental property, what are my rights under the CRTLO?
Under the CRTLO your landlord has the obligation to keep the temperature inside of your rental property maintained at 68 degrees Fahrenheit from 8:30 am to 10:30 pm and 66 degrees Fahrenheit from 10:30 pm to 8:30 am from the dates of September 15th to June 1st each calendar year. If your rental property is not that temperature you may sue your landlord.
What if my rental property in Suburban Cook County has a problem which puts my health safety and welfare in danger? What are my Rights under the RTLO?
If there is a condition on your rental property that makes your rental property uninhabitable meaning that it threatens your health safety or welfare, examples of this include mold, leaking roof, or anything else that is threatening you and the rental property becomes in an unlivable condition, your landlord has 72 hours to fix the problem, you may terminate the lease, you have 30 days to leave the rental property, and you will no longer owe any more rent.
New 2021 Cook County Residential Landlord Ordinance Protects Cook County Suburban Tenants
There is good news for tenants of the Cook County suburbs and a new law, as of June 1, 2021, Cook County’s Residential Tenant Landlord Ordinance “RTLO” (Cook County’s version of Chicago’s CRTLO) was put into effect and offers protections to renters of Suburban Cook County (except for Mount Prospect, the City of Chicago, and Evanston who have their own laws in place that are similar in nature).
My Heat or Air Conditioning does not work in my rental property, what are my rights under the RTLO?
Like the CRLTO the RTLO protects tenants by the enactment of some of the CRLTO legal provisions. The RTLO mandates that in all rental properties the temperature inside must be maintained at 68 degrees Fahrenheit from 8:30 am to 10:30 pm and 66 degrees Fahrenheit from 10:30 pm to 8:30 am from the dates of September 15th to June 1st. The landlord must ensure that this temperature is maintained inside of the rental property and has a legal obligation to do so.
My Landlord enters my home without my permission and harasses me, what are my rights under the RTLO?
Under the CRLTO if your landlord cannot enter your rental property without giving you a proper 2-day notice in writing prior to the entry and the landlord must enter only between the hours of 8:00 am to 8:00 pm except in the case of an emergency. If the landlord does not follow the above protocols the landlord will be entering the rental property in what is called an illegal or unlawful entry, or if your landlord makes unreasonable demands for lawful entry which cause you to feel harassed the tenant my bring an action in Cook County, IL and obtain: 1. Injunctive relief- this means that your landlord will be ordered by the Court to cease the wrongful conduct or 2. Obtain Damages-the tenant may recover from the landlord damages to be determined by the Court and the tenant shall receive and attorney’s fees.
What do I do if my landlord has kicked me out of my apartment and we never went to court? What are my Rights under the RTLO?
If your landlord illegally evicts you the tenant, this is where the landlord changes the locks, shuts off the utilities, or physically assaults or threatens you the tenant, or removes you the tenant’s property, under the RTLO the tenant may sue the landlord to recoup possession of the rental property sue for damages and attorney’s fees. Your landlord must serve you with notice in order to start an eviction action against you in Court. No matter what your landlord tells you he or she must serve you with documentation in order to evict you, if he or she never served you with notice you have been illegally evicted from your rental property.
What do I do if I am evicted from my Rental Property? Can I pay the landlord all of the money owed and regain possession of my rental property even if I am evicted by the Court?
Under the RTLO if the tenant is evicted from the rental property, the tenant has the right to cure, meaning that if the tenant pays all of the money owed to landlord, even if the tenant has been ordered by the Court to be evicted from the rental property, and even if the Cook County Sheriff shows up to evict the tenant, if the tenant pays the landlord all of the amount owed, the tenant has the right to recoup the rental property and will be allowed to stay in their rental property.
My Landlord is charging me a high amount for a Security Deposit, it seems unfair, what are my rights under the RTLO?
Under the RTLO the amount of security deposits must not exceed the amount of 1 and ½ of the monthly rental amount. Your landlord in Suburban Cook County cannot create their own late fees, late fees are fixed at $10 for the first $1K in rent, and 5% on the rest of the rent.
Landlord’s Breach of the Lease
Usually, it is the tenant that is in breach of the lease agreement, but sometimes the landlord can breach the lease or covenants in a lease. Here are some common examples of when a landlord breaches a lease agreement:
- Constructive Eviction-Illinois tenants are protected by a legal concept known as the implied warranty of habitability, which means that this warranty is implied in all leases in the state of Illinois. Basically, the property must be in a livable condition (not dangerous, unsafe, unsanitary, unlivable) while the tenant resides in the real property that is subject to the lease agreement. If the real property that is subject to the lease becomes inhabitable, for example there is a hole in the roof and water is leaking into the house, and the landlord refuses to repair the defect in the home, the tenant may sue the landlord for what is called constructive eviction. To prove a case of constructive eviction a tenant must prove that the real property subject to the lease agreement becomes essentially useless to the tenant or where the tenant is deprived of the uses and enjoyments of the real property that is subject to the lease agreement as a result of the landlord’s wrongful acts. If tenant successfully prevails he or she may, terminate lease, obtain compensatory damages from the landlord and will not have to pay rent to the landlord.
- Wrongful eviction- If a landlord wrongfully or illegally evicts a tenant through self-help such as changing the locks, removing items from your home, not serving the tenant with notice of eviction, landlord threatening you with physical violence, or turning off the utilities to the real property that is subject to the lease agreement or by turning off the utilities, may commence a forcible entry action which is governed by the Illinois Forcible Entry and Detainer Act ("Act"), 735 ILCS 5/9-101, et seq. If the tenant is successful may obtain compensatory damages, and is relieved of paying rent to the landlord, and could possibly obtain other damages and attorney’s fees. In this scenario there are other causes of action that could arise such as a count for Conversion of your personal property, which means that your landlord stole and converted your property into his own and you have the right to recoup your losses. This also applies to commercial leases for real estate where there exists a landlord and tenant relationship.
It is important to consult with an attorney in these situations and here at O’Flaherty Law we have highly experienced real estate attorneys that have handled many wrongful and illegal eviction cases, so please call us to schedule a consultation.
New Illinois Law Real Property Transfer on Death Instrument Act
On July 9th, 2021, Governor J.B. Pritzker signed a bill which changes the Residential Real Property Transfer on Death Instrument Act, the new law is called the Illinois Real Property Transfer on Death Instrument Act. The previous law and the new law that allows for a person/owner to create a transfer on death instrument ("TODI") which allows a person/owner to identify real property that they own place it inside a TODI and upon that person/owner’s death the real property identified in the TODI will automatically pass to the designated beneficiary that the person named in the TODI. This process avoids the Illinois Probate Courts. The new law adds to this by allowing commercial real estate to be identified by a TODI where a person names a designated beneficiary and upon that person/owner’s death, the commercial real estate will automatically transfer to the named designated beneficiary upon the person/owner’s death, thereby avoiding Probate Court. The new law also allows that a designated beneficiary of a TODI pertaining to any real property commercial or residential can also be a trust, as long as the trust is in existence at the time the TODI was executed, is created by the TODI, created by the will of the owner, or is created by another person who has predeceased the owner.
TODI Requirements
The new law states that the TODI does not have to say the language that consideration was given to the owner in exchange for entering into the TODI agreement. The beneficiaries’ addresses are not needed in the TODI, but it is important to note that the TODI must be witnessed by two competent witnesses who are age 18 or over, witnesses cannot be designated beneficiaries of the TODI and the TODI needs to be notarized. It is mandatory that the TODI be recorded before the owner's death. All the aforementioned protocols need to be followed or the TODI will not be valid.
Surviving Spouse's Right to Renounce the TODI
If the TODI is renounced by a surviving spouse, the surviving spouse is entitled to one-third of the real estate if the owner left any heirs or one-half if the owner has no heirs. In order to effectively renounce the TODI the surviving spouse needs to file a renouncement of the TODI, at the location of the Recorder of Deed's Office in which the TODI was originally recorded in, the surviving spouse has seven months to do so or the surviving spouse will waiver her right of renouncement of the TODI. The remaining real estate passes as if the surviving spouse had predeceased the owner, unless the TODI states something different.
Is the TODI I Received Subjected to the Owner’s Creditors?
A designated beneficiary of TODI is subject to creditors such as the owner's creditor claims against him or her, the owners funeral expenses, the surviving spouses and surviving children's statutory share, only where the owners estate is insufficient to take care of the aforementioned expenses. Any interested party trying to challenge the TODI has two years to do so. An Attorney must draft the TODI, but the Attorney does not need to have their law license in Illinois, but an owner can draft his or her own TODI if they choose to do so.
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