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The following are commonly asked questions and general answers that are consistent with Illinois law. The information provided here should be construed as a guide and a general overview of Illinois law and local law in the situations discussed, and not as a definitive statement of Illinois or local law on any of the topics discussed. Particular additional facts may actually lead to a different conclusion than what is discussed here. Please consult with an attorney for an opinion of Illinois and/or local law for the specific facts of your particular situation.
What law governs my relationship with my tenant?
When does federal law apply?
When does Illinois law apply?
When does local law apply and what are the local laws that do apply?
What is the Chicago Residential Landlord and Tenant Ordinance and when does it apply?
What is the Evanston Residential Landlord and Tenant Ordinance and when does it apply?
After my tenant moves out of the apartment at the end of the lease term, when do I have to return the security deposit?
Do I have to pay interest on my tenant’s security deposit?
Whose property is my security deposit – mine or my tenant’s?
What kind of notice do I have to give my tenant(s) of any code violations in my building?
Can I legally refuse to rent an apartment to a prospective tenant with a pet? Even if I am willing to accept the tenant, can I legally charge an extra security deposit for any damage the pet might cause?
Do leases have to be in writing (can they be oral)?
What is a “month to month” tenancy?
How is a month-to-month tenancy terminated?
If someone is hurt in my building, who is liable – me or my tenant?
When, and under what conditions, can a tenant sublease an apartment?
What are my obligations regarding repairs in the apartment?
Can a landlord limit the number of people occupying an apartment?
Under what conditions can I go into an apartment that’s being occupied by a tenant?
If my tenant does something I don’t like or approve of, can I terminate their tenancy – or at least refuse to renew their lease once it is up?
What can/must I do if my tenant leaves the apartment before the end of the lease term?
If I don’t want to renew my tenant’s lease, what steps do I need to take?
My tenant is behind in rent, and there is still time left on the lease – what are my options?
What do I need to do to evict a tenant?
If my tenant is trying to find a subtenant to take over the lease, and notifies me that they found a tenant, do I have the option of entering into a brand new lease with that individual, rather than continue under the old lease?
If the lease with my tenant stipulates that I have to approve of a subtenant, but my tenant gets a subtenant without my approval, does this make the lease void?
If my tenant is late in paying my rent, what is the maximum amount I can charge me as a late fee?
Are early payment discounts legal? (Also known as “reverse late charges”)
Does a landlord or a tenant have to notify the other about whether they want to renew the lease or not?
What are the rules about whether a landlord has to keep security deposits in a separate account and whether the landlord has to pay interest?
My tenant’s lease is due to expire, and my tenant is not going to renew the lease. What are the rules about when I can show the apartment?
Q: What law governs my relationship with my tenant?
A: Several different sources of law might apply – federal law might apply, Illinois law might apply, and local ordinances might apply. The answer depends on several factors, including what the landlord/tenant issue is in the first place, where you live, what type of building you own, and whether you live in the building. The questions and answers that follow offer a more detailed discussion of these different sources of law and how they might apply to your situation.
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Q: When does federal law apply?
A: With regard to landlord/tenant issues, federal law really only prohibits discrimination. Section 1982 prohibits a landlord from discriminating against a potential or existing tenant on the basis of race. The Fair Housing Act prohibits a landlord from discriminating against a potential or existing tenant on the basis of race, color, religion, national origin, sex, or familial status. (Note: The Fair Housing Act applies to all apartments, except apartments in owner-occupied buildings with four or fewer residential units.)
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Q: When does Illinois law apply?
A: Illinois has a number of statutes specifically relating to landlord/tenant matters, and each statute specifies the circumstances to which it applies. Some regulations apply to landlords of buildings with 5 or more residential units, for instance, while others apply to landlords of buildings with more residential units. As well as these statutes, Illinois has its own anti-discrimination statutes. The Illinois Human Rights Act prohibits a landlord from discriminating against a tenant based on race, color, religion, national origin, ancestry, age, sex, sexual orientation, marital status, handicap, military status, or unfavorable discharge from the military. Other than these statutes, a landlord/tenant relationship falls under contract law, whether the lease is written or oral. Contract law in Illinois is a mixture of statutory law and common law. In summary, what state law might apply to a particular situation depends on the specific facts, and whether or not a local ordinance might also apply.
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Q: When does local law apply and what are the local laws that do apply?
A: The cities of Chicago, Evanston, Mount Prospect, and Urbana have comprehensive landlord/tenant ordinances. These comprehensive ordinances address most, but not necessarily quite all, of the nuts-and-bolts issues of landlord/tenant matters and issues. The ordinances for these cities apply to the residential property in those cities, under the conditions specified in the particular ordinances. (For a discussion of the Chicago Residential Landlord and Tenant Ordinance and the Evanston Residential Landlord and Tenant Ordinance and when they apply, please see the Q & As following this) Aside from the comprehensive ordinances Chicago, Evanston, Mount Prospect, and Urbana have, numerous other municipalities have ordinances dealing one or another aspect of residential tenancies, but do not have a comprehensive ordinance dealing with all (or most) aspects of residential tenancies.
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Q: What is the Chicago Residential Landlord and Tenant Ordinance and when does it apply?
A: The Chicago Residential Landlord and Tenant Ordinance (“Chicago RLTO”) is an often-discussed and sometimes misunderstood ordinance that gives a number of important rights and obligations for tenants and landlords. The Chicago RLTO applies to all rental units in Chicago, except: (1) units in an owner-occupied building with six or fewer units, (2) units in motels, hotels, and rooming houses, unless the occupant is renting the unit on a month-to-month basis and has occupied the unit for more than 32 days, (3) school dorms, (4) shelters, (5) employee housing, (6) non-residential rental units, and (7) co-ops. Recap: to determine whether or not the Chicago RLTO applies, ask: (1) is the unit in Chicago? (if “yes” then continue; if “no” then the ordinance does not apply) (2) is the unit residential – that is, do you or do people live there? (if “yes” then continue; if “no” then the ordinance does not apply) (3) does the owner of the building live in a unit in the building? (if “yes” then go to question #4 below; if “no” then the ordinance does apply, as long as the unit is not in a shelter, employee housing, co-op, or in a hotel/motel/rooming house {unless you’ve lived there for more than 32 days and you’re occupying the unit on a month-to-month basis}) (4) does the landlord occupied building have more than six units? (if it has more than six units, the ordinance applies, whether the building is landlord occupied or not; if the building has six or fewer units, the ordinance does not apply.)
A copy of the summary of the Chicago RLTO must be attached to all leases for residential units in Chicago falling under the jurisdiction of the Chicago RLTO. Even if the lease is oral and not written, the landlord must nevertheless give the tenant the summary of the Chicago RLTO if the unit falls under its jurisdiction.
Besides the RLTO, Chicago has a Fair Housing Ordinance which prohibits discrimination in housing on the basis of race, color, sex, age, religion, disability, national origin, ancestry, sexual orientation, marital status, parental status, military discharge status, or source of income. The Chicago Fair Housing Ordinance applies to all landlords, regardless of whether or not the unit falls under the jurisdiction of the Chicago RLTO.
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Q: What is the Evanston Residential Landlord and Tenant Ordinance and when does it apply?
A: The Evanston Residential Landlord and Tenant Ordinance (“Evanston RLTO”) is very similar to the Chicago RLTO and governs virtually all of the same aspects of landlord/tenant matters as the Chicago RLTO. One significant difference, however, is that the application of the Evanston RLTO does not have a limit based on landlord occupancy or the number of units in a building; the Evanston RLTO applies to all rented residential units in Evanston except for medical geriatric units, educational institutions, religious institutions, hotels/motels, co-ops, social or fraternal organizations, and dwellings under a contract of sale where the occupant is the purchaser.
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Q: After my tenant moves out of the apartment at the end of the lease term, when do I have to return the security deposit?
A: Under Illinois Law: The Security Deposit Return Act requires any landlord of a building with five or more residential units to return the security deposit within 45 days from the date the renter left the unit. The landlord can withhold all or part of the security deposit for damage to the apartment only if the landlord delivers (by mail to last known address or by personal delivery) to the tenant an itemized list of the damage and copies of receipts (or estimates) for the repairs; the landlord must deliver these to the tenant within 30 days from the date the tenant vacates the premises. If the landlord has estimates, rather than receipts, within 30 days, then the landlord must provide copies of paid receipts based on these estimates within another 30 days. If the landlord fails to comply with these requirements, and still tries to withhold all or part of the security deposit in bad faith, the landlord may be liable for twice the amount of the security deposit, plus any court costs and reasonable attorney’s fees. Note: this particular statute applies only to landlords of buildings with five or more residential units; if there are less than five residential units in the building, this statute does not apply. If no local ordinance applies, then Illinois contract law applies, and you would be obligated to return the security deposit, minus any deductions for reasonable damages to you and/or the unit, within a reasonable amount of time.
Under the Chicago RLTO: The Chicago RLTO has the same procedures as the Security Deposit Return Act discussed above, so the answer under the Chicago RLTO is the same as under the Security Deposit Return Act, but with one critical difference: the penalty of twice the security deposit, plus court costs, plus attorney’s fees may be imposed regardless of whether the landlord failed to comply with the procedures in bad faith. Whereas the Security Deposit Return Act has a bad faith requirement for this penalty to be imposed, the Chicago RLTO does not require bad faith. Accordingly, the Chicago RLTO requires landlords to be all the more diligent about complying with the procedures. Another difference is that the Chicago RLTO expressly prohibits a landlord from seeking to deduct expenses to repair damage caused due to normal wear and tear.
Under the Evanston RLTO: The Evanston RLTO has a similar requirement for the landlord to notify the tenant of what withholdings he or she will make from the security deposit and provide copies of paid receipts, except that the Evanston RLTO requires the landlord to give this notice and/or return the deposit (or balance thereof) within 21 days of the date the tenant has vacated the unit. The penalty for the landlord who fails to comply is a return of the security deposit, plus a penalty up to twice the wrongfully withheld security deposit and reasonable attorney’s fees.
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Q: Do I have to pay interest on my tenant’s security deposit?
A: Under Illinois Law: The Security Deposit Interest Act requires any landlord of a property containing 25 or more residential units (whether in one single building or an apartment complex with more than one building on contiguous parcels of land) to pay interest on security deposits held by the landlord for more than six months. The landlord must pay the interest earned to the tenant (via cash payment or as credit applied toward rent due) within 30 days of the end of each 12 month period, unless the tenant is in default under the lease. A landlord who does not follow these requirements may be liable for twice the amount of the security deposit, plus any court costs and reasonable attorney’s fees. Note: this applies only to landlords of buildings/apartment complexes with 25 or more residential units – if there are less than 25 residential units in the building/apartment complex, this statute does not apply. If no local ordinance applies, then Illinois contract law applies, and you would not be required to pay interest. Note, also: this statute does not apply to any public housing, regardless of the number of units.
Under the Chicago RLTO: Landlords must pay interest on security deposits held for more than 6 months. The interest rate is determined on an annual basis by the City of Chicago comptroller. Landlords must keep security deposits in a federally insured, interest-bearing account separate from the landlord’s account(s). The landlord must pay the interest earned to the tenant (via cash payment or as credit applied toward rent due) within 30 days of the end of each 12 month period.
Under the Evanston RLTO: same as under the Chicago RLTO.
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Q: Whose property is my security deposit – mine or my tenant’s?
A: The security deposit is always the property of the tenant, but is held by the landlord as security in case the tenant defaults under the lease. Upon termination of the tenancy, some or all of the security deposit may be transferred to the landlord for unpaid rent or for damage to the apartment.
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Q: What kind of notice do I have to give my tenant(s) of any code violations in my building?
A: Under the Chicago RLTO: a landlord is required to disclose in writing any code violations that have occurred to the unit or any of the common areas of building within the past 12 months. The landlord has this obligation when a tenant moves into an apartment, and has a continuing obligation to notify tenants of any code violations in the unit or the common areas of the building.
Under the Evanston RLTO: a landlord must disclose in writing any code violations that have occurred to the unit or any of the common areas of the building any time a tenant begins or renews a tenancy.
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Q: Can I legally refuse to rent an apartment to a prospective tenant with a pet? Even if I am willing to accept the tenant, can I legally charge an extra security deposit for any damage the pet might cause?
A: No law prohibits a landlord from refusing a tenant because he or she has a pet. So, discriminating against a would-be tenant based on the fact that they will have a pet living in the apartment is legal. If a tenant gets a new pet when he or she is already living in the apartment and the lease specifically bars pets, the tenant will be in violation of the lease. If the landlord does allow pets, but wants to charge an extra deposit if a tenant has a pet, the landlord can do that. However, in Chicago, an extra “pet deposit” is treated just the same as a security deposit.
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Q: Do leases have to be in writing (can they be oral)?
A: Leases can be in writing or oral, and both are equally enforceable. Obviously, the terms of oral leases can be subject to dispute, since they aren’t written down.
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Q: What is a “month to month” tenancy?
A: A month-to-month tenancy is when you do not have a lease for a longer period of time than one month. For instance, the most common lease term for a residential unit is one year – but it can be shorter or longer. If there is no specific term for the lease, it is a month-to-month tenancy. Some month-to-month tenancies are created when a written lease expires, but the “status quo” doesn’t change (that is, the tenant doesn’t move out, the landlord doesn’t ask (or legally force) the tenant to leave, the tenant continues to pay rent, and the landlord continues to accept rent – in other words, everything about the landlord/tenant relationship stays the same, except that the lease is technically expired); other month-to-month tenancies begin that way – typically, there is no written lease (but there certainly can be one), and the landlord and tenant have an understanding that the tenant will pay a certain amount of rent each month. A month-to-month tenancy can go on indefinitely, until either the landlord or the tenant gives proper notice to the other that the tenancy is being terminated.
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Q: How is a month-to-month tenancy terminated?
A: A month-to-month tenancy is terminated with proper notice by either the landlord or the tenant to the other party. Proper notice from either side is 30 days’ written notice, and the tenancy will terminate on the last day of the monthly term (typically, but not necessarily, the last day of the month – if rent is due on the 1st of the month, then the last day of the monthly term is the last day of the month). Example: if the rent is due on the 1st of each month, a landlord or tenant could notify the other in writing that the month-to-month tenancy will be terminated, but the termination would not be effective until the end of the month following the notice of termination (for instance, the landlord could notify the tenant on March 3 that the month-to-month tenancy is being terminated; the actual termination would be effective on April 30, and the tenant would have to pay March’s rent and April’s rent, and be out of the apartment before May 1).
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Q: If someone is hurt in my building, who is liable – me or my tenant?
A: The answer is that either the landlord or the tenant may be liable, and would depend on the specific facts involved. For instance, where did the injury happen (in the apartment or in a common area)? What condition caused the injury? What was the injured party doing when he or she was injured? Unfortunately, a definitive answer to this question is impossible without an assessment of the facts of each particular occurrence.
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Q: When, and under what conditions, can a tenant sublease an apartment?
A: A tenant may seek to sublease the apartment under the terms specified in the lease. A landlord cannot unreasonably withhold approval of a subtenant.
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Q: What are my obligations regarding repairs in the apartment?
A: A landlord has an obligation to keep an apartment and common areas in repair good enough to meet the requirements of local codes. Ideally, a landlord and a tenant can have an open line of communication and can work together to fix problems as they arise. If a tenant destroys a part or all of the property in the unit, the landlord may hold the tenant responsible, and may deduct all or part of the security deposit to cover the cost of the damage if the tenant does not pay. Further, the landlord could pursue a court case against the tenant.
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Q: Can a landlord limit the number of people occupying an apartment?
A: Yes, a landlord can limit the number of people who can occupy an apartment. The occupancy must relate to a legitimate reason – it doesn’t have to be an elaborately justified reason, just a legitimate (i.e., nondiscriminatory) reason. The occupancy limit cannot be arbitrary, however, and should be consistent throughout the lease term – a landlord cannot arbitrarily change an occupancy limit in the middle of a lease term. The occupancy limit should be specified in the lease, or otherwise clearly stated.
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Q: Under what conditions can I go into an apartment that’s being occupied by a tenant?
A: You can always, of course, get a tenant’s permission to enter an apartment. Unless you get permission, though, the answer depends on why you need to enter the apartment, whether the tenant is refusing to admit you (and, if so, why), and/or what local ordinances say.
Under Illinois Law: the answer is generally no, you cannot enter a leased apartment at any time. However, you cannot reasonably be denied access on an emergency basis (for example, a broken water pipe that is causing a flood).
Under the Chicago RLTO: Except with the permission of the tenant, you must give at least 2 days’ notice (48 hours) before you can come into the apartment. Also, you must state a reason why you need to enter the apartment. In the case of emergencies, you can enter without giving 2 days’ notice, but must then give notice to the tenant that you entered the apartment and state the purpose of the entry, and that notice must be given within 2 days after the entry. Further, your request for entry must be at a reasonable time – customarily, between 8:00 AM and 8:00 PM.
Under the Evanston RLTO: Except with the permission of the tenant, you cannot enter a leased apartment without at least 2 days’ notice, except for emergencies (where no consent or notice is needed at all).
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Q: If my tenant does something I don’t like or approve of, can I terminate their tenancy – or at least refuse to renew their lease once it is up?
A: The answer depends on what, specifically, your tenant has done or is doing. A landlord cannot discriminate based on one of the bases protected under federal law, state law, or whatever local ordinances may apply. If your tenant is doing something that is not protected under these bases, you probably can at least opt to not renew the lease. Depending on how severe the problem, you may be able to legally terminate the lease.
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Q: What can/must I do if my tenant leaves the apartment before the end of the lease term?
A: First, the tenant is liable for rent under the terms of the lease. The tenant will likely want to get a subtenant, and a landlord cannot reasonably refuse a subtenant. If the tenant does not get a subtenant, a landlord is obligated to mitigate damages by taking reasonable steps to re-rent the apartment; as long as a landlord takes reasonable steps to do this, the tenant will not be relieved of his or her obligation to owe rent for the balance of the lease term. If a tenant has failed to get a subtenant, the landlord can sue tenant for unpaid rent and any damages (in excess of the security deposit) to the apartment, as long as the landlord has mitigated his or her damages.
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Q: If I don’t want to renew my tenant’s lease, what steps do I need to take?
A: Under Illinois Law: nothing – simply do not renew the lease. As a courtesy, you may want to at least let the tenant know that you do not plan to renew the lease.
Under the Chicago RLTO: a landlord is required to give written notice that the lease will not be renewed at least 30 days before the expiration of the lease.
Under the Evanston RLTO: same as for the Chicago RLTO.
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Q: My tenant is behind in rent, and there is still time left on the lease – what are my options?
A: Do you know why your tenant is behind in rent? Have you talked to the tenant about the situation? Has the tenant given you any explanation? Can you and the tenant come to any kind of arrangement regarding paying at least part of the rent or paying rent in alternative means (maintenance services in the building, for instance, if you’re willing to consider this option)? Do you believe the tenant will be able to get caught up on the rent, or do you believe that the tenant will never again be a rent paying tenant? These are, of course, some of the factors you may weigh in assessing how serious the situation is. Additional factors you may consider include how much time is left on the lease – is it only 2 months? 8 months? Also, how much is the security deposit you hold for this tenant (that is, how much is the security deposit vis-a-vis the amount of rent owed and the rent you reasonably believe the tenant will never pay you)? After weighting all of these factors, if you believe that the tenant will not be a rent paying tenant and you want to force the tenant to either pay or get out, you must give the tenant a 5 day notice to pay or else the lease will be terminated. If the tenant is able to pay the rent due, you must accept the payment and not follow up with an eviction procedure.
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Q: What do I need to do to evict a tenant?
A: You must have a valid reason to evict a tenant – that is, the tenant must have breached the lease in some way. Most commonly, failure to pay rent is the breach that leads to eviction. The landlord must first serve a 5 day notice and give the tenant an opportunity to pay. If the tenant still does not pay, you begin the eviction by filing suit in court. You will have to have the sheriff serve summons and a copy of your complaint on the tenant. Once that is done, you and the tenant will appear in court. The eviction process will take some time – frankly, at least two months, and maybe more. Evictions are the option of last resort, but they are the only option if you want to legally remove a nonpaying or problem tenant who will not otherwise move out. Due to the technically complex nature of court actions, landlords are best advised to hire counsel to handle an eviction.
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Q: If my tenant is trying to find a subtenant to take over the lease, and notifies me that they found a tenant, do I have the option of entering into a brand new lease with that individual, rather than continue under the old lease?
A: Yes, if your tenant and the new subtenant agree. Chances are, if your tenant is trying to get a subtenant, it means that your tenant could not care less what relationship you strike up with the new party – they’re just happy to have a new person to take over their lease; they would likely be perfectly happy to have their lease voided, leaving you to deal with the new party however the two of you decide. The new party, however, may or may not want to enter into a lease of their own with you – depending on how favorable the terms are under the terms of the lease versus the terms of your proposed new lease. The subtenant would have to accept a new tenancy, and could opt to accept only a subtenancy under the old lease; you would not be able to reasonably refuse this outcome. Of course, given this outcome, once the lease is over, your subtenant will have to negotiate with you on your terms or have the option to move out.
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Q: If the lease with my tenant stipulates that I have to approve of a subtenant, but my tenant gets a subtenant without my approval, does this make the lease void?
A: It would make the lease voidable. That means that you would have the option to declare the lease void and sue the tenant for the rent due for the balance of the lease. Another option would be to accept the new subtenant and continue to collect rent from the subtenant. Your decision will likely depend on the caliber of the new subtenant and whether you think you can expect to collect rent from him or her. Bear in mind, also, that if you do void the lease, you certainly have the right to sue your tenant for rent for the balance of the lease, but you still have the obligation to mitigate your damages by seeking another tenant.
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Q: If my tenant is late in paying my rent, what is the maximum amount I can charge me as a late fee?
A: Under the Chicago RLTO: $10.00 for the first $500.00 of your monthly rent, and then 5% of whatever your monthly rent is over $500.00.
Under the Evanston RLTO: $15.00 for the first $500.00 of your monthly rent, and then 5% of whatever your monthly rent is over $500.00.
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Q: Are early payment discounts legal? (Also known as “reverse late charges”)
A: Under Illinois Law: yes, perfectly legal
Under the Chicago RLTO: only if the early payment discount is equal to what the late payment penalty would be.
Various municipalities may have ordinances that govern this for your community.
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Q: Does a landlord or a tenant have to notify the other about whether they want to renew the lease or not?
A: Under Illinois Law: no – the lease ends on the date given in the lease. Neither side is required to give any kind of notice to the other about renewing the lease or not renewing the lease. It is presumed that both sides know that the lease is going to expire. If the tenant stays in the apartment beyond the termination of the lease, and the landlord doesn’t object to that, then either a month-to-month tenancy is created or else a new year-long lease is created, depending on what the lease says about this situation or what the conduct of the parties is interpreted to mean.
Under the Chicago RLTO: the landlord must give the tenant notice of non-renewal at least 30 days before the date the lease expires. If the landlord gives notice of non-renewal, but fails to give it at least 30 days before the expiration of the lease, the tenant has 60 days from being served notice to vacate. If the landlord does not give any notice of non-renewal at all, then either a month-to-month tenancy is created or else a new year-long lease is created, depending on what the lease says about this situation or what the conduct of the parties is interpreted to mean.
Under the Evanston RLTO: same as under the Chicago RLTO
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Q: What are the rules about whether a landlord has to keep security deposits in a separate account and whether the landlord has to pay interest?
A: Under Illinois Law: the landlord does not have keep the security deposit(s) in a separate account, but the security deposit is nevertheless the tenant’s property. The landlord has to pay interest only if the tenant lives in an apartment building or complex of apartment buildings on contiguous parcels of land with 25 or more units in total.
Under the Chicago RLTO: the landlord does have to keep the security deposit(s) in a separate federally insured, interest-bearing bank account. A landlord may keep security deposits for more than one tenant in the same account (does not have to open a separate account for each tenant’s security deposit), but cannot have any of the landlord’s own money in the account as well. Landlord does have to pay interest on the security deposit at an interest rate set each year by the City of Chicago comptroller.
Under the Evanston RLTO: the landlord is required to keep security deposits in a federally insured, interest bearing account. The Evanston RLTO stipulates that the annual interest rate due on security deposits mirrors the rate announced by the City of Chicago comptroller.
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Q: My tenant’s lease is due to expire, and my tenant is not going to renew the lease. What are the rules about when I can show the apartment?
A: Under the RLTO: You can show your apartment to prospective tenants within the final 60 days of the current tenancy (not sooner) and only after giving your tenant at least 48 hours notice that you will be coming into your apartment to show it. As long as you give your tenant this notice, and it is within the last 60 days of your lease, your tenant cannot reasonably stop you from showing the apartment.
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