Thou Shalt Not Serve a Five Day Notice with a Sunday Deadline

A recent Illinois appellate court decision has actually ruled that a landlord’s 5 day notice is defective if the deadline in the notice (the 5th day) falls on a Sunday.  As most landlords are aware, it must serve its non-paying tenant with a written notice before it can file an eviction lawsuit.  In the residential context, and unless the lease provides for a longer time period, the notice for the non-payment of rent is 5 days, and the notice for some other default under the lease is 10 days.  Condominium associations must similarly serve a 30 day notice to evict a unit owner for non-payment of assessments.  Most Landlords and Associations don’t put too much thought into the exact date they are serving notice.  However, with a recent First District Appellate Case, Holsten Management Corporation v. Laysa Diaz[1], the date of notice must be factored into consideration.

In Holsten Management, the Landlord served a 5 day notice on the tenant for non-payment of rent on a Tuesday.  By its terms, the tenant had 5 days to pay rent in full or her tenancy would terminate at the expiration of the notice.  The last day to pay according to the notice was a Sunday.  However, while the tenant could have paid on a Sunday, based on a longstanding state law, she was not legally obligated to make any payment on a Sunday.   See 5 ILCS 70/1.11 (West 2010).  Therefore, the last day the tenant could have paid was actually a Monday, therefore the trial court deemed the notice defective and dismissed the case.  The First District Appellate Court affirmed the trial court, even after considering that tenant didn’t pay any rent on that Monday (or any time after the notice).

As of now, the case is filed under Supreme Court Rule 23 which means it may not be cited by attorneys as precedent, except in the limited circumstances.  That means that this case is not binding on any other court, but it does not mean this is a one-time outcome.  Other courts may reach similar conclusions and the legal principle can very well be extended to 10 day and 30 day notices that expire on Sundays.[2]  To remedy this problem, one can either pay particular attention to the exact date the notice is served (and will expire), or simply add an extra day to the notice- the landlord would thus serve a “6 day notice”.  While it is a slight inconvenience to the landlord or association to wait an extra day to file for eviction, this extra day is worth it compared to filing an action, having it dismissed and having to start over from the very beginning. 

[1] Holsten Management Corporation v. Laysa Diaz, 2014 IL App (1st) 131261-U
[2] Furthermore, the law cited by the Appellate Court, 5 ILCS 70/1.11 (West 2010), also prohibited any statutory notices from expiring on Saturday or any State holiday.  While the facts of Holsten Management focused on expiration on Sunday, there is no reason the holding cannot be extended to a Saturday or State holiday.