Hi Everyone,

I recently served a "5 day notice" on a non-rent paying tenant and am waiting for the 5 days to pass before filing a complaint and summons with the county clerk's office here in Cook County, Illinois.

Here is my problem- while doing additional research these past couple of days, I have come to realize that (on the 5 day notice) I filled in the wrong amount of rent owed. The tenant is late on $2000, however, I incorrectly listed $2050 (the extra $50 being the late fee as per the lease).

An Illinois attorney's website noted, "A five day notice is normally served in cases involving non-payment of rent. Only those charges deemed as "rent" should be included in the notice (in many cases, landlord's mistakenly and improperly include other amounts due such as an unpaid security deposit or late fees into the notice and therefore provide the tenant with a possible defense against the notice in court).

Should I go ahead with the complaint, even though the 5 day notice is technically incorrect and could give the tenant "a defense"? Or should I serve a 2nd "5 day notice" with the correct amount (and thus, wait another 5 days)?

I'm leaning toward the latter. Any feedback would be very much appreciated.

Personally, I would send the corrected/second notice. I'd rather wait an extra 5 days and know that I've done it right -- then be 5 days ahead but have to continuously think about whether or not it is going to become an issue weeks into the eviction process.

- John...

Your notice has to be in proper format and substance for the court to honor your request.

What Brad says, though it must be detailed in the lease. Also courts may disallow lease terms that are in opposition to state law, even if the terms were agreed to and the tenant is not waiving any rights.

While what Brad says may be accurate (and is how I write my leases), it likely does not matter if state law overrides that when it comes to what goes on the notice. Michigan is just like that -- the tenant can owe me $2050 including $50 in late fees -- but the 7-day notice must NOT INCLUDE any late fees written on it. The notice for Michigan -- and it sounds like for Illinois also -- must only include past-due RENT.

When you get to court, yes, you get to re-add in those late fees as debts owed -- and you can get a judgment for the entire amount with the late fees. But the law is still the same when it comes to the NOTICE itself: in my state, it CANNOT include the late fees that might currently be owed. (Regardless of what you've tried to "detail in the lease."

- John...

Better to serve a new Notice To Pay Rent now, than to have to serve a correct Notice To Pay in a few months, after you lose your eviction!

Natalie: This is a thread from 2011. You'd likely be better off creating a NEW thread detailing your situation and asking for advice.

- John...