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92nd General Assembly

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Public Act 92-0823

SB1934 Enrolled                                LRB9214343RCsb

    AN ACT in relation to civil procedure.

    Be it enacted by the People of  the  State  of  Illinois,
represented in the General Assembly:

    Section  5.   The  Code  of Civil Procedure is amended by
changing Sections 9-104  and  9-107  and  by  adding  Section
9-107.5 as follows:

    (735 ILCS 5/9-104) (from Ch. 110, par. 9-104)
    Sec.  9-104.   Demand  -  Notice  -  Return.   The demand
required by  Section  9-102  of  this  Act  may  be  made  by
delivering a copy thereof to the tenant, or by leaving such a
copy  with  some  person  of  the age of 13 years or upwards,
residing on, or being in charge of, the premises; or in  case
no  one  is in the actual possession of the premises, then by
posting the same on the premises; or if those  in  possession
are  unknown  occupants  who  are  not parties to any written
lease, rental agreement, or right to possession agreement for
the premises, then  by  delivering  a  copy  of  the  notice,
directed  to  "unknown  occupants",  to  the  occupant  or by
leaving a copy of the notice with some person of the  age  of
13  years  or upwards occupying the premises, or by posting a
copy of the notice  on  the  premises  directed  to  "unknown
occupants". When such demand is made by an officer authorized
to  serve  process, his or her return is prima facie evidence
of the facts therein stated, and if such demand  is  made  by
any  person not an officer, the return may be sworn to by the
person serving the same, and is then prima facie evidence  of
the facts therein stated. The demand for possession may be in
the following form: To ....
    I  hereby  demand  immediate  possession of the following
described premises: (describing the same.)
    The demand shall be signed by the  person  claiming  such
possession, his or her agent, or attorney.
(Source: P.A. 83-1362.)

    (735 ILCS 5/9-107) (from Ch. 110, par. 9-107)
    Sec. 9-107.  Constructive service.  If the plaintiff, his
or  her  agent, or attorney files a forcible detainer action,
with or without joinder of a claim for rent in the complaint,
and is unable to obtain personal service on the defendant  or
unknown  occupant and a summons duly issued in such action is
returned without service stating  that  service  can  not  be
obtained,  then  the  plaintiff, his or her agent or attorney
may file an affidavit stating that the defendant  or  unknown
occupant  is  not  a  resident of this State, or has departed
from this State, or on due inquiry cannot  be  found,  or  is
concealed  within this State so that process cannot be served
upon him or her, and also stating the place of  residence  of
the defendant or unknown occupant, if known, or if not known,
that  upon  diligent inquiry the affiant has not been able to
ascertain the defendant's  or  unknown  occupant's  place  of
residence,  then  in all such forcible detainer cases whether
or not a claim for rent is  joined  with  the  complaint  for
possession, the defendant or unknown occupant may be notified
by  posting  and  mailing  of  notices; or by publication and
mailing, as provided  for  in  Section  2-206  of  this  Act.
However,  in cases where the defendant or unknown occupant is
notified by posting and mailing of notices or by  publication
and  mailing,  and the defendant or unknown occupant does not
appear generally, the court may rule only on the  portion  of
the  complaint  which  seeks judgment for possession, and the
court shall not enter judgment as to any rent claim joined in
the complaint or enter personal judgment for any amount  owed
by  a  unit  owner  for his or her proportionate share of the
common expenses, however, an in rem judgment may  be  entered
against  the  unit for the amount of common expenses due, any
other expenses lawfully agreed upon  or  the  amount  of  any
unpaid  fine, together with reasonable attorney fees, if any,
and costs. The claim for rent may remain pending  until  such
time  as  the defendant or unknown occupant appears generally
or is served with summons, but the order for possession shall
be final, enforceable and appealable if the  court  makes  an
express  written  finding  that  there  is no just reason for
delaying enforcement or appeal, as provided by Supreme  Court
rule of this State.
    Such  notice  shall  be  in  the name of the clerk of the
court, be directed to  the  defendant  or  unknown  occupant,
shall  state the nature of the cause against the defendant or
unknown occupant and at whose instance issued  and  the  time
and  place  for  trial,  and shall also state that unless the
defendant or unknown occupant appears at the time  and  place
fixed  for  trial,  judgment  will be entered by default, and
shall specify the character of  the  judgment  that  will  be
entered  in  such  cause.  The sheriff shall post 3 copies of
the notice in 3 public places  in  the  neighborhood  of  the
court  where the cause is to be tried, at least 10 days prior
to the day set for the  appearance,  and,  if  the  place  of
residence  of  the defendant or unknown occupant is stated in
any affidavit on file, shall at the same time mail  one  copy
of the notice addressed to such defendant or unknown occupant
at  such  place  of residence shown in such affidavit.  On or
before the day set for the appearance, the sheriff shall file
the notice with an endorsement thereon stating the time  when
and  places  where the sheriff posted and to whom and at what
address he or she mailed copies as required by this  Section.
For want of sufficient notice any cause may be continued from
time  to  time  until  the  court  has  jurisdiction  of  the
defendant or unknown occupant.
(Source: P.A. 83-1528.)
    (735 ILCS 5/9-107.5 new)
    Sec. 9-107.5.  Notice to unknown occupants.
    (a)  Service  of  process upon an unknown occupant may be
had by delivering a copy of the summons and complaint  naming
"unknown  occupants" to the tenant or any unknown occupant or
person of the age of 13 or upwards occupying the premises.
    (b)  If unknown occupants are not named  in  the  initial
summons  and complaint and a judgment for possession in favor
of the plaintiff is entered, but the order does  not  include
unknown  occupants  and the sheriff determines when executing
the judgment for possession that persons not included in  the
order  are  in  possession  of the premises, then the sheriff
shall leave with a person of the age of 13 years  or  upwards
occupying  the premises, a copy of the order, or if no one is
present in the premises to accept the  order  or  refuses  to
accept  the order, then by posting a copy of the order on the
premises. In addition to leaving  a  copy  of  the  order  or
posting  of the order, the sheriff shall also leave or post a
notice addressed to "unknown occupants"  that  states  unless
any  unknown occupants file a written petition with the clerk
that sets  forth  the  unknown  occupant's  legal  claim  for
possession  within 7 days of the date the notice is posted or
left with any unknown occupant, the unknown  occupants  shall
be  evicted  from the premises. If any unknown occupants file
such a petition, a hearing  on  the  merits  of  the  unknown
occupant's  petition shall be held by the court within 7 days
of the filing of the petition with  the  clerk.  The  unknown
occupants  shall  have  the burden of proof in establishing a
legal right to continued possession.
    (c)  The plaintiff may obtain a judgment  for  possession
only and not for rent as to any unknown occupants.
    (d)  Nothing  in  this  Section may be construed so as to
vest any rights to persons who are criminal trespassers,  nor
may this Section be construed in any way that interferes with
the  ability of law enforcement officials removing persons or
property from the premises when there is a criminal trespass.

    Section 99.  Effective date.  This Act takes effect  upon
becoming law.
    Passed in the General Assembly May 31, 2002.
    Approved August 21, 2002.
    Effective August 21, 2002.

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