Q-I rented an apartment with my children, on a month-to-month basis. After I moved in, my boyfriend moved in with us. The landlord now wants us out of the apartment and has served both of us with a notice of termination.
Because we didn’t move out, the landlord told my boyfriend that he is going to sue him, because the landlord believes a judge would not evict a mother with children, but would evict my boyfriend. Can the landlord do that?
A-Probably not. Because you were the original tenant, you must at least be named as a defendant in the lawsuit. If your boyfriend has paid part of the rent, then the landlord may be able to claim that your boyfriend has also become a tenant. But you are still a tenant, too.
It is clear that the landlord considers you a tenant because you also were served with a notice terminating the tenancy. If you are not named as a defendant in an eviction suit, the judge probably will want to know why the notice included you while the lawsuit did not.
Because you are a tenant and because you must be named as a defendant in the suit, it probably would be impossible for the landlord to simply evict your boyfriend without also evicting you. Practically speaking, if the sheriff were sent to evict your boyfriend, he would have no way of knowing which property belonged to you and which belonged to your boyfriend.
You should understand that even though you have children, the judge is required to follow the law in this matter. If the landlord properly served you with a termination notice and if he was legally justified in serving it, you most probably would be evicted by the court regardless of your family status. The judge might give you a little more time to move because of the children, but you would not be exempt from eviction.
Q-I have a tenant whose lease ends at the end of the month. The new tenant wants to move in the next day, but the current tenant has informed me that he cannot move until the day after his lease expires. That obviously prevents the new tenant from moving in on the day his lease starts, and that’s when he wants the apartment. What can I do?
A-As a practical matter, you cannot file an eviction suit, because the tenant is still entitled to live there through the end of the lease. Also, you cannot get possession of the apartment through an eviction suit because the time required for service of the summons is greater than the time your current tenant intends to stay.
Probably the only remedy you have is to assess a holdover rent against the tenant starting with the day after his lease expires. You should check the terms of the tenant’s lease, because you may have to serve a demand for possession, or other notice, on the tenant before you have the right to assess the holdover rent. If such a notice is required, you should serve it on the first day after the lease expires and inform the tenant in the notice that you intend to assess him for holdover rent.
If he is not out of the apartment when required, you should assess the holdover rent. Most probably, under the lease, rent is due for the whole month as of the first day of the period, so you would not have to prorate the holdover rent on a daily basis. That would mean that the extra day might cost the tenant twice the normal monthly rent.
While you may or may not be able to enforce the holdover rent against this tenant, it certainly is worth trying because it might serve as deterrent against the tenant staying at the property beyond the lease’s expiration.
Also, if you lose your new tenant because the current tenant fails to move out, the old tenant may be liable for losses you sustain as a result. You should inform the current tenant that you will hold him responsible for the loss of rent and other expenses you incur as a result of his failure to move.
Because the new tenant may be able to sue you for his damages, you also may want to pass those costs on to the current tenant.
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Robert A. Boron, a Chicago attorney who specializes in leasing matters, writes about landlord and tenant issues for the Tribune. Questions to him can be addressed to Rental Q&A, Your Place section, Chicago Tribune, 435 N. Michigan Ave., Chicago, Ill. 60611. Sorry, but he cannot make personal replies.
