The following questions were submitted to John Roska, an attorney/writer whose weekly newspaper column, "The Law Q&A," runs in the Champaign News Gazette.
I inherited a house that I rented out to a family friend. They stopped paying rent, so I called the police to have them removed as a trespasser. The police said they couldn’t do anything because it was a civil matter, not criminal. Isn’t trespassing criminal? Why can’t they do something?
Under the Illinois Criminal Code, “criminal trespass to real property” is a Class B misdemeanor, which can get you 30 days to 6 months in jail, and a maximum $500 fine.
Criminal trespass to real property happens two basic ways: when someone enters after being warned not to, or won’t leave after being asked to. Officially, the second type happens when someone “remains upon the land of another, after receiving notice from the owner or occupant to depart.”
That may sound like it covers your landlord-tenant situation, but it does not. That’s because the criminal law specifically does not apply “to anyone living on such land at the request of, or by occupancy, leasing or other agreement or arrangement with the owner or his agent.” It also doesn’t apply to anyone invited there by a tenant.
That’s why criminal trespass mostly occurs when someone refuses to leave a business or public area. It’s occasionally used by feuding neighbors—one appellate court case involved someone who trespassed by retrieving an envelope that blew into his neighbor’s yard—but rarely to get rid of someone who claims a right to live somewhere.
So, it’s not criminal trespass for the tenant to refuse to leave upon a landlord’s request. The police should stay out. If they get involved, and arrest the tenant, they could be liable for illegally evicting the tenant.
The legal way to get rid of someone who moves in with your permission, and won’t leave, is an eviction. That’s done by following the Forcible Entry and Detainer Act, which is buried in the Illinois Code of Civil Procedure. It’s designed to settle landlord-tenant disputes peacefully.
As one case said, “the forcible entry and detainer statute reflects the long-established public policy that violence and even bloodshed could result from individuals using force and violence to regain possession of real property, even if the possession is rightfully theirs.”
Landlords can’t call the police, then, and can’t just do it themselves. They must follow the procedures set out in the law.
Those procedures boil down to two steps: notice, and a court case. The written notice is a pre-requisite for the court case, so you can’t take step two without properly completing step one. If the notice doesn’t say the right things, or isn’t delivered correctly, or the proper time (5, 10, or 30 days) doesn’t pass between delivery and filing the court case, that case can be dismissed.
Doing things right isn’t that hard, and doesn’t take that long. In Champaign County, it’s possible to go from notice to court order for eviction in less than a month.