MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS
1. ACCEPTANCE OF RENT IS A WAIVER
The Principle that acceptance of rent after the date specified in the notice terminating a
tenancy waives the defaults specified In the notice to terminate has been repeatedly upheld In
Illinois. See Bernstein v.Weinstein, 20 Ill.App. 292, 296 (1920):
The acceptance of rent as rent, for any time subsequent to the expiration of the notice was an
admission of the continuance of the tenancy and a waiver of the notice; so that the plaintiff
See also, Housing Authority for LaSalle County v. Little, 21 Ill.Dec. 25, 380 N.E.2d 1201
(3rd Dist. 1978); Westerman v. Gilmore, 17 Ill. App.2d 4552, 150 N.E.2d 660 (3rd Dist. 1958);
Bismark Hotel Co. v. Sutherland 92 Ill. App. 3d 167, 47 III. Dec. 512, 415 N. E. 2d 517 (1st
In fact, Illinois law provides landlords with a method of giving notice which would
preclude waiver by acceptance of partial payment but the
notice must prominently state:
Only FULL PAYMENT of the rent demanded in this notice will waive the landlords right
to terminate the lease, under this notice, unless the landlord agrees in writing to continue the
lease in exchange for receiving partial payment.
735 ILCS 5/9-209 (1992).
The implication is clear. The Illinois General Assembly has, adopted the common low
principle that acceptance of any rent subsequent to a notice without this caveat is a waiver of the
default specified in that notice.
SUBSEQUENT NOTICE IS A WAIVER OF PREVIOUS NOTICE
Acceptance of rent after a termination notice reaffirms a tenancy because it implicitly
recognized the existence of a continuing landlord-tenant relationship. In the same way, notices
to terminate a tenancy implicitly recognize the existence of a continuing tenancy capable of
being terminated. Therefore, the act of serving later notices of termination of tenancy waives any
Prior notices served upon a tenant. In Hopkins v. Levandowski, 250 Ill. 273, 95 N. E. 496 (III.
Sup. Ct. 1911) the court stated:
If the landlord has by some act recognized the existence of the tenancy subsequent to the
time be might have declared the forfeiture, such right of forfeiture if thereby waived. [Citations.]
It is not essential that the landlord should actually have in mind the waiving of the forfeiture.
[Citations]. A notice to quit has been held such a waiver. [Citations.]
250 Ill. at 375-376, 95 N.E. at 497. See also, Ardich v. Kleinert, 12 Ill. Dec. 700, 703, 370 N. E.
2d 504 (Ill. Sup. Ct. 1977).
In Hoefier v. Erickson 333 Ill.App. 577, 73 N. E. 2d 488 (1st Dist. 1947), a landlord
served two notices to terminate tenancy: one in May and a second in August. The eviction action
was filed In July. The appellate court held that the August notice reaffirmed the tenancy by
waiving the May notice, so that the eviction action could not proceed:
This [August) notice states that defendant's "tenancy” will terminate on September 30,
1946. This was the recognition of a tenancy which would terminate on September 30. 1946.
Under the factual situations the giving of the second notice constituted a waiver of the previous
notice. Id., 73 N. E. 2d at 451.
III. NO PROPER TERMINATION MADE PRIOR TO FILING THIS FORCIBLE ENTRY
AND DETAINER ACTION
Here, the Complaint filed in Forcible Entry and Detainer is based on the allegation that
the Defendant owes rent. The only notice that could Predicate this action for non-payment of
rent was the 14-Day Notice (Defendant's Motion Exhibit C) given on ____, but this Notice was
waived by the 30-Day Notice (Defendant's Motion Exhibit D) given on _____, which makes no
demand for rent and could not predicate this action for non-payment of rent.
Moreover, this 30-Day Notice does not comply with 735 ILCS 5/9-209, in that the partial
payment caveat discussed above in Part I is absent, and the landlord has accepted Tent payments
totaling approximately $_____ since this notice's termination date.
Prior to filing a Forcible Entry and Detainer Action, the landlord must give a valid notice
of termination. 735 ILCS 5/9-209, 5/9-210. As, the Illinois Supreme Court has stated:
An action under the Forcible Entry and detainer Act "'is a special statutory proceedings,
summary in its nature, in derogation of the common law, and a Party seeking this remedy must
comply with the requirements of the statute especially with respect to jurisdiction.” (Citations
Omitted). The conditions and requirements that the statute prescribed in conferring jurisdiction
must clearly exist and … the mode of procedure provided by it must be strictly pursued."
(Citations Omitted). Adrich v. Kleinert, 12 Ill. Dec. 700, 703, 370 N. E. 2d 504 (III. Sup. Ct.
The acceptance of the rent subsidy by the landlord after his 30-Day Notice invalidates the
notice and purported termination of tenancy mandated by the Forcible Entry and Detainer Act;
therefore, the bringing of this action is premature, and this court lack subject matter jurisdiction
and should dismiss this action.