Excerpt taken from The Ins and Outs of Tenant Screening: From Application to Eviction: By George N. Skidis, Jr.

Tenant Disputes Rent Claimed Due

A tenant who is served a five-day notice can and will dispute the amount of rent the landlord claims as due. If the amount claimed exceeds the amount the tenant believes is due the court may want to know the reason or reasons why. Should the tenant actually pay the actual amount of rent due as stated on the notice they can defeat the landlord’s claim to possession.

Rent Demand Should Not Include Non-Rent Amounts – 75ILCS 5/9-209

A five day rent demand should include rent only. The demand cannon include other claims such as damages, security deposits, attorney’s fees, etc. The courts prohibit a Property Manager from including in five-day rent demands claims for items other than rent such as attorney’s fees and other costs. You demand for rent should advise the tenant to pay the rent actually due. Do not include late fees.

Method of Payment

Some courts can narrowly interpret method of payment also called tender. A tenant should tender rent due in the manner demanded on the five-day notice. If the notice does not specify, the tenant should tender the rent in accord with the past practice or how they have always done it. If paying in person, the tenant can bring a witness to watch them make the payment to the Property Manager. The witness can then describe how payment was made and appear in court on tenant’s behalf.

Refusal of Payment

If the Property Manager refuses payment of the entire amount due, the tenant can bring a motion to dismiss any eviction action. The reason for this is that the original five-day demand for rent demanded payment of rent. If you want them out for some other reason use a different type of notice or demand.

Payment (Tender) Excused

Tender may be excused where it would be futile. If the Property Manager tells the tenant not to try to make a payment, or if the rent amount claimed dues is grossly excessive, payment may be futile. This argument may be even stronger if the Property Manager includes the “only full payment” language included in ILCS 5/ 9-209. That language is: Only full payment of the amount of rent demanded in this notice will waive the landlord’s right to terminate the lease under this notice, unless the landlord agrees in writing to continue the lease in exchange for receiving partial payment.

A: Maybe. But your old neighbor has an uphill climb.

You didn’t know it, but you created a bailment. Legally speaking, that’s a delivery of personal property for temporary safekeeping. Physical possession of the goods is transferred, but not legal ownership.

Bailments commonly occur when you drop something off at the cleaners, or at a repair shop, or when you park in a private lot.

The legal owner of the personal property is the “bailor.” The person who temporarily keeps the bailor’s property is the “bailee.”

You’re probably what the law calls a voluntary bailee. You voluntarily and intentionally took control of someone’s personal property. Your neighbor is the bailor.

Even though you and your neighbor didn’t formally agree to create a bailment, or to become bailor and bailee, a contract for a bailment is implied by law.

Actually, the law INFERS from what the facts IMPLY that there’s a bailment. But contract law always refers to “implied contracts.” As one Illinois court said, when you take possession of someone’s property, “the law implies a contract for the keeping of the property until it shall be restored to the owner or his agent.”

In general, “bailees will be liable for losses that result from their negligence.” Ordinary negligence would be the breach of a duty of reasonable care for the property. The general idea is: What would reasonable people do in your situation?

For you, reasonable care probably means keeping your neighbor’s property safe for a reasonable length of time—but NOT forever. Your neighbor would probably also be expected to act reasonably, by retrieving her stuff within a reasonable amount of time. If she sued, you could certainly defend by claiming that her delay in doing anything was unreasonable. You might even be able to prove that she had abandoned the property, and forfeited any claim to it.

Some courts say we should go easy on good Samaritans like you, and say voluntary bailees aren’t liable unless they’re “grossly negligent.” Although what’s “grossly negligent” isn’t clear, it’s much harder for bailors to prove than ordinary negligence.

If your old neighbor could prove the required level of negligence, the most you’d be liable for is the value of the lost property. Your neighbor’s lax attitude implies it wasn’t worth much.

If she sued you, you’d probably not be able to sue her for storage fees. Unless you’re a business, voluntary bailees are presumed to be acting for free.

You had no duty to safeguard your neighbor’s property in this situation. You’d not have been liable for doing nothing. It’s only when you took control of the property that the law imposed a duty, and opened the door to liability.

City residents may participate by simply placing their tree within four feet of the curb by 6:00 a.m. on their scheduled collection date. Residents should refer to the map and schedule  on the fier below to determine their collection days.

Christmas Tree Collection 2012 Flier

A: You can do this several ways. Each way is different, and involves different details. While this column can cover some general points, you should talk to a lawyer about what’s best for your specific situation.

For real estate that’s titled in just your name, a will could designate who gets it—and your other property—when you die. During your lifetime, you’d be the sole owner. Your heirs would have no rights until you die.

Putting title to real estate in joint tenancy is another way to allow designated people to get property when you die. When one joint tenant dies, the property in joint tenancy passes automatically to the surviving joint tenants. It does NOT become part of your estate, so any attempt to transfer property in joint tenancy via a will won’t work.

If it’s just you and your daughter as joint tenants, the house passes automatically to her upon your death. During your lifetime, she’d be a co-owner, which has consequences you might want to avoid. For example, as co-owners you’d both have to agree on selling or mortgaging the property. And, your daughter’s creditors could go after property she holds in joint tenancy, even if she’s the only one liable on the debt.

The hassles and risks of co-ownership are often good reasons to avoid a joint tenancy.

(The second basic way to co-own real estate is a tenancy in common. Property held as tenants in common does NOT pass to the surviving tenants in common when you die. Upon your death, that property DOES become part of your estate, so it CAN be willed to somebody else. But it’s the will, not the tenancy in common, that transfers the property to a designated heir.)

A new law creates a new way to pass real estate to somebody else when you die. It’s the “Real Property Transfer on Death Instrument Act.” As the name suggests, it’s a way to transfer property when you die. Until then, though, the property’s all yours. Whoever may get the property when you die has no rights during your lifetime.

In the mean time, you can do whatever you want with the property. You don’t have to worry about working together with a co-owner. You can sell or mortgage the property by yourself.

And if you change your mind, and want to transfer the property to somebody else when you die, you can. If you decide you don’t want to transfer it at all, you can simply cancel the transfer.

The new law sets out what a transfer-on-death “instrument” is supposed to say, and how it goes into effect when you die. You can prepare a valid instrument now, but it will only transfer property starting January 1, 2012. If you die before then, it won’t work.

It’s been possible for years to designate bank accounts, CDs, IRAs, stocks, and bonds as “payable on death” to somebody else. This new law new makes it possible to do something similar with residential real estate.

This is a great article on the purpose of landlord regulation. Many Illinois cities use these same tactics to deny housing to low income people. They do this by going after the people who provide housing. Cities like Joliet and Westmont use the code enforcement methods described. They impose current code standards on older property so they always have a reason to force people out. Down state the crime free housing model is common. Crime free housing means that if a landlord fails to evict when ordered to by government they take away the property owner’s right to rent any property. Licensing and registration usually have crime free housing and the code enforcement method as part of the regulation. It is great to see these tactics challenged. If you are a housing provider share this with anyone who would be concerned with the expansion of these policies in Illinois.

 Article from the American Apartment Owners Association

Come try -

• Oysters on the half shell
• Fried Oysters
• Oysters Rockefeller
• Oysters Bienville
• Chargrilled Oysters
• Sautéed Oysters
• Buffalo Oysters
• Fried Oysters
• Oyster Stew

Or experience our Fried Oyster Platters adding coleslaw and fresh cut French fries for lunch or house salad, cup of soup and choice of potato for dinner.

And during our Oyster Festival, come try our many beers specials (starting at $2.75) and wines by the glass specials (starting at $4.50).

We will be offering our Traditional Thanksgiving Grand Buffet on Nov. 24th from 10:30am until 3pm. Leave the cooking, cleaning and carving to us and come enjoy an amazing array of food with your family. Our buffet will feature a triple carving station with roast whole turkey, Certified Angus roast prime rib of beef and roast bone-in ham. Enjoy sage-mushroom and Andouille and pecan stuffing, grilled Atlantic Salmon, sweet potatoes with dried cranberries, pecans and bourbon and many more sides, salads, soups, appetizers and various desserts including pumpkin pie.

Sunday – we have made some hour changes. We have extended our brunch buffet hours to 11am until 2pm. But we have decided to close for dinner on Sunday night. We will always open for any private group wanting to book a Sunday night. The rest of the days, Monday through Saturday, we are open 11am until 9pm.

We have some very good holiday party times still available in our private rooms that hold 30, 40, 50 or 90 people respectively. We would love to host your very special party.

Hope to see you soon!
Luke, Jane and the Staff of Kennedy’s at Stone Creek

See how the Atkins Group show appreciation to their employees while having fun with their Funbulance at the same time! They can travel to their properties and cook lunch! What a wonderful, fun way to say “Thanks”!

That same $100 spent on line, leaves your community completely. None remains. It’s a bit better if you buy from a national chain. In that case $43 of the $100 remains.

The extra $25 you invest in your community when you support local businesses over chains, does big things for you and your neighbors. Did you k now that local businesses invest in local charities at more than twice the rate of national chains? That’s because they are your neighbors and they care about your community just as much as you do.

Are you sure you enjoy getting up at 2 a.m. to stand in line in the cold for several hours just so you can push through the crowds to get Uncle Joe that flannel shirt at a discount? Consider instead spending a leisurely Friday recovering from your turkey hangover. You could watch some college football, tackle a craft project, put up your holiday decorations, read or simply get some extra rest so you can enjoy Shop Local Saturday.

Champaign’s Campustown, Midtown and Downtown have planned a family-friendly, festive day to kick off the holiday season with your neighbors. On Saturday, November 26 you can sleep in and enjoy a leisurely breakfast, brunch or lunch at one of the many local restaurants. Wander the streets where you will be treated to holiday caroling, festive decorations and window displays highlighting this year’s theme: Jingle Bell Rock!

Enjoy holiday treats while you browse the unique offerings of local retailers. Special discounts and contests await. Children of all ages will enjoy visiting with Santa and his elves throughout the afternoon. Visit him at 106 South Neil in the new offices for the Convention and Visitor’s Bureau. They are across the street from Christie Clinic in the Precision Graphics building. By the way, don’t stress because parking throughout Campustown, Midtown and Downtown will be free.

If your children would rather play than shop, that is no problem. Simply drop them at Class Act for some holiday fun while you shop. How convenient that Class Act is right next door to Santa! Another convenience is the gift wrapping station in the lobby of M2 at the corner of Neil and Main.

Round out your day with the fabulous Parade of Lights at 6:00 PM followed by the Tree Lighting Ceremony and the Orpheum’s Snow Globe event. What fun way to enjoy your family and friends! After all, isn’t that what the holidays are about?

A:    It’s probably riskier to require proof.  The risk of being prosecuted for “harboring aliens” is small, compared to the risk of violating the Fair Housing Act.

The federal Immigration and Nationality Act has various penalty provisions.    One of those applies to “Bringing in and Harboring Certain Aliens.”  It applies when someone “conceals, harbors, or shields from detection” an “alien” who is “in the United States in violation of law.”  Penalties are fines, up to 5 years in prison, or both.

But, to violate the law, the harboring must be done in “knowing or reckless disregard of the fact” that the alien is illegal.  In the few prosecutions of property owners, on top of knowing that their tenants were illegal, the owners seem to have been involved in transporting or employing them, too.

Just renting to someone who turns out to be illegal, then, is not likely to get a landlord prosecuted.  As the venerable Justice Learned Hand said in one case, “the statute is very plainly directed against those who abet evaders of the law against unlawful entry, as the collocation of “conceal” and “harbor” shows. Indeed, the word, “harbor” alone often connotes surreptitious concealment.”

Employers are required by another federal law to document that their employees are here legally.  But employers usually face only civil fines for violating the law.  To be prosecuted criminally, they have to be “engaged in a pattern or practice” of hiring illegal non-citizens.  Being harsher on landlords, who aren’t required to document anything, is probably not the law’s goal.

Courts have also struck down local ordinances that a few towns passed that required landlords to document that tenants are legal.  Those decisions say that immigration is controlled by federal law, so it’s up to the federal government, and not state or local governments, to enforce immigration laws.

This all suggests that landlords who don’t know much about their tenant’s immigration status probably don’t face much risk.

It wouldn’t necessarily be illegal for a landlord to require that tenants be legal.  But, it might be difficult for a landlord to do that in a completely neutral and uniform way.  If they can’t, they could be violating the Fair Housing Act.

That’s another federal law, which makes it unlawful to refuse to sell or rent a dwelling “because of race, color, religion, sex, familial status, or national origin.”  The Illinois Human Rights Act does the same thing, but adds to that list “ancestry, age, order of protection status, marital status, physical or mental disability, military status, sexual orientation, or unfavorable discharge from military service.”

Requiring all tenants to prove their legal status would require some immigration law expertise.  Although documentation might usually be easy, in some cases it can get quite complicated.

Finally, it’s not a crime to be here illegally.  It’s only “illegal” in the sense that it violates federal immigration law.  But the remedy for that is “removal”–formerly “deportation”.  The Supreme Court has said that “deportation, however severe its consequences, has been consistently classified as a civil rather than a criminal procedure.”

Here in Champaign County the real estate market is indisputably seasonal, and with the 3rd quarter of 2011 behind us, sales activity will ease into the holidays and eventually pick back up after the 1st of a brand-new year. It’s a perfect time for evaluating the year to-date, so let’s take a look at how our local market is doing…

There’s no doubt we’re still facing many of the same challenges that we’ve been up against for a few years now. Our inventory of homes on the market has been hovering around 2,000 since the beginning of 2010 and for 2011 thus far we’ve averaged 2,029 homes on the market. With this much competition, sellers are forced to engage their homes in both a beauty contest and a price war. Meanwhile buyers have an abundance of homes to choose from and, for now, are still enjoying record-low interest rates.

While we ended 2010 with an average sale price of $148,082 the average sale price for the first three quarters of 2011 stands at $139,393, approximately a 6% decrease. What’s fascinating, and certainly partially to blame for the decline in average price, is that the total number of sales in the price range of $1 to $50,000 is on track to be TWICE as many in 2011 as in 2010! In other words, we’re seeing more foreclosures this year than we have in years past, and that my friends will bring prices down.

On the other hand, we’re currently on track to end the year with more residential sales total than last year, a promising outlook. Right now our absorption rate is at 9 months compared to 13 months this same time last year, and over the past three months we’ve seen a slight but nonetheless upward price trend. While anything could happen over the next quarter to finish out the year, these small victories are worth acknowledging.

Yes, we continue to face challenging times, and yet, here in our local market, we have plenty to be thankful for. Wishing you all a successful 4th quarter!

–

Shannon Lewis
Owner/Broker of Homeplace Advisors, LLC
217.552.8059
Your Champaign Home Blog
Visit Our Website

Given the gentle Fall we’ve had, you may need to be nudged to actually remember or believe that the holidays are fast approaching. Allow us to help you populate your calendar.

Read the HUD ruling directly here

It is important to place each of your properties into its own individual Land Trust. This insulates each property from the other and makes you less of a “target.” If you are interested in learning more about the benefits of using a Land Trust to hold title to your real estate investments, please read our Land Trust Blog. It is written by Randy Hughes who has over 30 years of experience using Land Trusts and teaching others how to set up and administer their own Land Trusts.

Check it out! Real Estate For Profit

Remember that the Internet is the go-to for most of your residents. Therefore, consider providing information about local websites. Here is a list of links your tenants might appreciate:

• Smile Politely <www.smilepolitely.com> An independent online magazine
• Champaign Center Partnership <ChampaignCenter.com> The place to go to find out what’s happening in Campustown, Downtown and Midtown
• Urbana Business Association <www.urbanabusiness.com> The place to go to find out what’s happening in Urbana
• Eat CU <http://www.eatcu.com> Delivery from a huge variety of local restaurants
• Delivery 4U <http://www.delivery4uonline.com/> Delivery to Champaign, Urbana and Savoy from a variety of restaurants that don’t offer their own delivery service
• Movie Times.com <http://www.mrmovietimes.com/> Local movie times
• Illinois Homepage.net<http://illinoishomepage.net/> WCIA-TV’s homepage offering news, weather, instant updates and access to half-off deals
• My Half Priced Deals <http://wrsp.gocommediadeals.com/> Offers half-off deals from Fox Illinois
• C What’s 1/2 Price <http://wbui.gocommediadeals.com/> Offers half-off deals every Thursday at 10 from the CW
• Half Price Haven <http://www.news-gazette.com/store/deal-day> Offers half-off deals from the News-Gazette

Remember, the more welcome and at home your residents feel, the better they’ll treat you and your property.

Do you have an answer for our question? Please let us know how to better your association by answering this question. You can use the comments below, or if you would prefer, you can contact Marita directly. We will see that your question is posted in an upcoming edition of www.ciaa-live.com

Q: Can a creditor refuse to accept payments on a debt? If I sent them a payment, and they sent it back, is the debt cancelled? Can they still sue me?

A: Creditors can accept or reject payments, and still sue. It’s a myth that rejecting your payment cancels your debt.

Creditors want money, so it’s a mystery when they reject it. Some claim that small payments cost too much to process, or take too long to repay the debt. Some may want to cultivate a tough reputation. Others, though, take anything they can get.

So, for good, bad, or no reason, creditors can reject payments. You can’t make them take your money.

Rejecting your payments does NOT cancel the debt. It’s not some kind of jubilee. A creditor who refuses your money can still sue you.

Once they sue and get a judgment against you in court, a creditor could still refuse to accept payments. But, having used up the threat to sue, they don’t have a lot of threats left that can squeeze more out of you. In most cases, a wage garnishment will be the most a judgment creditor can get, and they don’t need your permission to try that.

But threatening to garnish wages, post-judgment, may extract voluntary payments from employed debtors who want to avoid a garnishment hassle. Voluntary payments save the creditor from the extra hassle of a garnishment, too.

Because wages can only be garnished when a debtor’s employed, and taking home more than $371.25 per week, threats of garnishment can be hollow. A debtor earning less than that threshold amount can refuse to pay, and neither a judge nor a garnishment can make them pay.

Above that threshold, a garnishment will get the weekly net pay in excess of $371.25, or 15% of gross pay—whichever is LESS.

In Small Claims cases (for less than $10,000), the court rules say that “installment payments . . . shall not extend over a period in excess of three years duration.” But that runs up against the fact that some debtors simply can’t pay off a judgment that fast, or at all. In practice, then, that rule doesn’t get much use.

Creditors often prefer lump sum payoffs over installment payments that drag on forever. In exchange for one “big” payment, they’ll cancel the debt—even if that payment is a faction of what’s owed. When possible (e.g., tax refund time), lump sum payoffs are worth considering.

A lump sum for about half of what’s owed will almost always be taken seriously. If the debt’s been sold off to someone who paid pennies on the dollar for it, a lump sum for pennies on the dollar may be accepted. Same when a creditor realizes they can’t otherwise squeeze much blood out of you.

When a creditor agrees to take a lump sum pay-off, get it in writing. Before paying, insist they confirm that the payment satisfies the debt. Afterwards, insist they confirm the debt has been satisfied.

Again, we have the Champaign Park District to thank for a great party where friends, neighbors and strangers become a community. The party starts at 7 with The Brat Pack, an 80′s Cover Band. They are followed by Autumn Zero, a Rock and Southern Rock band from Sullivan.

Of course the fabulous Downtown Champaign restaurants and bars will be extending their hospitality as well!

Mark August 20th on your calendar and head for Downtown Champaign for some end of the summer fun for all ages. The annual Festival of the Arts is filled with one of a kind art work covering many genres.

Do you want something unique for your garden or home? No problem!

Perhaps you’re determined to present unique holiday gifts this year from local artists. This is the place to shop!

Would you like to gather ideas and inspiration from others? Inspiration abounds!

Even better, all this creativity is set to the backdrop of Downtown Champaign’s unique shopping and dining destination with a musical score provided by a distinctive group of performers. Everything about this free event says Fun! Fun! Fun!

The most lucrative dumpster diving happens on multi-family properties and prime time is move-out week. Among the materials found in local dumpsters are cashmere sweaters with the price tags still attached; cash – both coin and folding; jewelry; unopened food; fully loaded gift cards; and a plethora of electronics including microwaves, phones, Ipods and computers.

As students prepare to return home, their belongings become disposable and begin to clog your dumpsters. This is messy and costly. Rather than pay to have perfectly usable – and often new – goods hauled to the landfill, consider a more positive solution. First, you might consider diving in and harvesting some of the valuables. Or, you could set up an area where usable materials can be gathered. Perhaps you can designate an empty apartment as the Landfill Free Zone. The materials you collect can either be sold or donated. Your donations are eligible for a tax deduction at these locations:

• Habitat for Humanity’s ReStore,: Either drop off at the store Mon – Sat. 10-5 or call 355.6460 for pick up
• YMCA’s Dump & Run: Donations accepted Aug. 10-13 beginning at 9 a.m. each day at the U of I Stock Pavilion
• Goodwill: Drop off donations at 912 W Anthony Dr, Champaign or call 356-4021
• Salvation Army: Drop off donations at either Champaign location – 2212 N. Market Street or 109 West John Street. Call 373-7825 for free pick up of large items

Consider donating unopened food to a local food pantry. The number of households locally experiencing low food security or hunger has gone up substantially. The Central Illinois Foodbank reports that 14.3% of Illinois residents fall into this category. Check with your church or donate to a food pantry such as the Eastern Illinois Foodbank or Restoration Urban Ministries.

There are also several consignment companies you might consider. If you have like new clothing, they will accept it into their store and pay you a portion of the sale price. Contact:

• Karen’s Kloset at 355.9395
• Plato’s Closet at 366.8200
• Dandelion at 355.9333
• Ella’s Consignment in the Millhouse Plaza at 408 Race Street in Urbana

Furniture, knick knacks, rugs and art work in great condition is also sold at local consignment stores. Contact:

• Classic Home Consignment in Round Barn Center (239.1169)
• Copasetic Furniture Consignment in Downtown Champaign
• Ella’s Consignment in Urbana

Let’s see how much material we can keep out of the landfill and into the hands of people who can use it.

Do you need a massage, a haircut or a tanning session? Check out the deals on these services. Perhaps you need a new pair of glasses, some new Illini garb, tech support or printing. No problem, there are specials on these as well. Of course, there are plenty of deals on eating and drinking. In fact, there are already 20 merchants participating in this neighborly event. You can download the 13 Thursdays Discount Flyer at http://www.champaigncenter.com

Circle Thursdays on your summer calendar and join your neighbors in Campustown.