Thursday, January 10, 2008

Failure to Pay Use/Occupancy is NOT Grounds for Order of Possession...

Interesting landlord/tenant matter recently out of the First District:

1st Dist. Circle Management, LLC. v. Olivier, No. 1-07-0621 (December 28, 2007) 3rd div. Reversed Trial court erred when it granted plaintiff, landlord, possession of apartment occupied by defendant for failure to pay the use and occupancy order during the pendency of plaintiff's forcible entry and detainer action. Although trial court had statutory authority to enter use and occupancy order, it could not circumvent protection of Act by granting possession when parties agreed that the defendant's failure to pay was not willful; and without considering the merits of plaintiff's claim for possession. Possession order was not a proper contempt sanction or exercise of the court's inherent authority.

Frankly I'm suprised at how infrequently "use and occupancy" stuff comes up with us. We handle 5/10 Forcibles each week. I think it's more rare in the suburban Cook County courts where much of our landlord work happens. We typically are going to plead for ongoing rent and assume you get any rent that accrues prior up to trial in a final judgment. A Motion for Use and Occupancy is appropriate if the case is going to drag on a while.

To me the difficult question is like in this case, okay the tenant was ordered to pay U/O but now she's insolvent and can't pay. So you can't find that tenant in contempt of court because the violation of the order isn't wilful. I think as soon as you saw tenant not paying you go in on some motion to force a hearing/trial on the underlying Forcible pleading where you're seeking possession.

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