Verella’s Round-Up: What do I do when my tenant is in jail?
- Details
- Category: Latest News
- Verella Osborne, President, Legal Document Management, Inc.
- May, 2018
Because U.S. criminal and civil laws are separate, a criminal act does not affect a tenant’s civil right to possession of his residence. The first order of business is to confirm the location of the tenant’s incarceration and obtain his inmate number by searching the databases listed below.
A landlord cannot commence eviction proceedings until the tenancy has been breached. Simply being arrested for a crime does not, itself, breach the tenancy. You must have a valid lease in effect with an enforceable criminal activity provision whose language states that no arrest or conviction is necessary and that a breach has been caused by a “preponderance of the evidence.”
Without this language in your lease, your tenant has to be convicted of a crime before a breach has occurred. This can take years. With the proper language, you may serve a 10-Day Notice for Breach of the lease. However, the CRLTO allows the tenant the right to cure the breach within 10 days, so there must be another criminal act within or shortly after the 10-day cure period to allow you to evict based on that breach.
If the tenant owes rent, or rent becomes due while the tenant is in jail, serve a 5-Day Notice on other occupants in the unit. If there are no other occupants, you may have a process server serve the tenant in jail. Service is allowed only by the Sheriff or a legal process server; Cook County jail service fees are approximately $100 and statewide jail service depends on the location.
Be sure that your process server’s Affidavit of Service cites the statute allowing jail service. If you are lucky, serving the tenant in jail will initiate a discussion to allow an agreed termination of lease and turnover of possession with the tenant or tenant’s family. Ensure that Agreed Turnover of Possession and Release form is signed either by the tenant or by an “authorized agent of the tenant.” If that isn’t a possibility and you have to file an eviction suit, direct the Sheriff to serve the tenant in jail and attach the inmate report to the summons. Remember that other adult occupants and “All Unknown Occupants” must still be served at the rental unit. A summons must also be directed to these other occupants to ensure that you have jurisdiction to evict and to dispose of any property found in the unit.
Cook County Jails: www.cookcountysheriff.org/inmatesearch
Illinois Jails: www.idoc.state.il.us
Federal Jails: www.bop.gov/iloc2/locateinmate
I hope these tips will allow this type of rental situation to be more profitable and easier to manage.
