Landlord’s Five-Day Notice That Ends On a Sunday Dooms Eviction Suit (Illinois 1st Dist.)

Holsten Management Corp. v. Diaz, 2014 IL App (1st) 131261-U vividly illustrates the dire results that can flow from a landlord’s failure to follow statutory eviction requirements to the letter.

The plaintiff landlord issued a five-day notice after the residential tenant fell behind in her rent payments. The notice was issued on a Tuesday and it expired on a Sunday. The notice specified that the tenancy would be terminated on October 21, 2012 – a Sunday. The tenant didn’t pay and about four months later, the landlord filed an eviction suit.

The tenant filed a 2-619 motion to dismiss on the basis that the landlord’s notice was defective since it required payment before it was legally due. The tenant argued that since the fifth notice day fell on a Sunday, the tenant had until the following day – Monday – to pay rent. The court agreed with the tenant, found the landlord’s notice defective and dismissed the suit. Landlord appealed.

Held: Affirmed. Case was properly dismissed.

Q: Why?

A: The Illinois Forcible Detainer Act (the “FED Act”) requires a landlord to serve a five-day notice as a prerequisite to suing to evict a defaulting tenant. 735 ILCS 5/9-209. The purpose of the notice requirement is to give tenants a grace period to make late rent payments. Holstein, ¶ 7. Illinois’ Statute on Statutes governs the time computation for someone to perform a legal act – such as paying rent.

The Statute on Statutes reads:

The time within which any act provided by law is to be done shall be computed by excluding the first day and including the last, unless the last day is Saturday or Sunday or is a holiday as defined or fixed in any statute now or hereafter in force in this State, and then it shall also be excluded. If the day succeeding such Saturday, Sunday or holiday is also a holiday or a Saturday or Sunday then such succeeding day shall also be excluded.

5 ILCS 70/1.11

Here, since the landlord’s five-day notice expired on a Sunday, the tenant had until Monday (the next day) to pay rent. But because the notice said that the tenancy terminated on a Sunday, it was legally deficient. The Court rejected landlord’s argument that the one-day mistake didn’t matter since the tenant didn’t pay anything on Monday – the day in which the notice should have expired. According to the Court, the statutory language was mandatory: since the five-day notice was defective, landlord’s entire suit was premature and properly thrown out.

NOW WHAT?

To paraphrase former baseball player Mark McGwire’s comical Congressional testimony (on the baseball steroid scandal): I’m not here to talk about the past; I’m here to talk about the future!!

So – what does the landlord do now? The notice in this case was served in October 2012, suit was filed in February 2013 and the unpublished opinion issued in May 2014. I’m guessing then, that the tenant hasn’t paid rent for 20 months (assuming he continued to live on the premises). I think the landlord should now serve a new five-day notice seeking rentals dating back to October 2012 and file a new lawsuit. Any rents accruing after February 2013 (when the first suit was filed) shouldn’t give rise to a res judicata defense. At any rate, this case serves as a grim reminder of the unpleasant consequences that stem from a landlord’s failure to strictly adhere to eviction notice procedures.