Thursday, April 8, 2010

Use and Occupancy Payments

The forcible entry and detainer act allows the plaintiff to recover use and occupancy payments during the pendency of an eviction lawsuit. 735 ILCS 5/9-201. Use and occupancy payments are typically requested when the defendant requests a jury trial, requests written discovery or depositions, or otherwise seeks to delay the case for a significant period of time.

This would allow the landlord to pay the mortgage until the case gets to trial. The thinking is that there may be a legitimate dispute as to the amount of back rent that is due, but there can be no dispute that some payments should be made for current rent while the case is pending.

On a side note, the first circuit recently held that a condo association can collect use and occupancy payments to be applied towards the monthly assessments. Warren Boulevard Condominium Assoc. v. Milton, 1-09-1235 (March 31, 2010).

But, what fascinates me is that there is no remedy for the plaintiff if the defendant doesn't make the payments. The use and occupancy order is completely worthless unless you have a defendant who is dumb enough to pay voluntarily.

The most common response that I have seen when the use and occupancy payments are not made is for the plaintiff to move for immediate possession. Then the trial can still be held on the amount of damages, but the plaintiff can re-lease the unit.

However, the court in Circle Management, LLC v. Oliver, 378 Ill.App.3d 601 (1st Dist. 2007), has held that "there is no language in section 9-201, however, that expressly permits a trial court to award a landlord possession following a lessee's failure to pay the statutorily authorized use and occupancy charges. Moreover, [defendant] is correct that there is no provision anywhere in the Act that authorizes sanctions for non-payment of rent pending trial.”

The court went on to say "In so finding, we are sensitive to the plight faced by landlords in Circle Management's situation that have filed a complaint pursuant to the Act following a tenant's nonpayment of rent and are unable to collect use and occupancy payments during the pendency of their actions due to the tenant's inability to pay. We realize that landlords depend upon rental payments to satisfy their mortgage payments and other monetary obligations. These valid concerns notwithstanding, it is incumbent upon a landlord that brings an action under the Act to prove that it is entitled to possession. The trial court may not grant possession under the Act merely because a tenant is unable to comply with a use and occupancy order."

The only other way, that I can think of, to collect use and occupancy would be to file a petition for rule to show cause. But then you have to show that the failure to pay is wilful, which is usually pretty hard to do in these types of cases.

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