Asked in Contracts for Illinois

Q: I had verbal contract with my mother on a building. Now 5yrs later after paided off she evicts me for nonpayment of rent

Can she legal do that

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1 Lawyer Answer
Bryan R. Bagdady
Bryan R. Bagdady
  • Oakbrook Terrace, IL
  • Licensed in Illinois

A: You have encountered a Statute of Frauds Issue. I authored a blog on this topic. I think it is relevant. Portions are stated below:

If you enter into contracts in Illinois, you should at least be aware of the Frauds Act. Illinois law limits certain claims and actions if they are not supported by a writing signed by the party to be charged with the claim or action. This statute is known as the Illinois Frauds Act. It states in section one: “That no action shall be brought, whereby to charge any executor or administrator upon any special promise to answer any debt or damages out of his own estate, or whereby to charge the defendant upon any special promise to answer for the debt, default or miscarriage of another person, or to charge any person upon any agreement made upon consideration of marriage, or upon any agreement that is not to be performed within the space of one year from the making thereof, unless the promise or agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized.” 740 ILCS 80/1.

Please be mindful that when the statute says “writing” that writing must be signed by the party to be charged. If you intend to sue someone to enforce an agreement and the Frauds Act requires the agreement to be in writing and that writing must be signed by the party you sue. The purpose of the Frauds Act is to prevent fraud, not facilitate it, and courts will not apply the statute if the result would be to perpetrate a fraud. As you might expect, the fact pattern can become important in any Frauds Act analysis.

There are several situations where the Frauds Act becomes an important legal impediment to any right or cause of action.

• An agreement for the sale of lands or any interest in land for a term longer than one year. If you are buying real property, use a written agreement. If you are entering into a multi-year lease, use a written agreement. These transactions are sufficiently complex or detailed that a written agreement is warranted even if the Frauds Act did not exist.

It is important to remember that the Frauds Act is an affirmative defense. If you are sued on an oral agreement and you fail to raise or plead the affirmative defense, you may be barred or prevented from using the statute as a defense. In addition, there are recognized defenses to the Frauds Act. For example, the defense may be waived, subsequently acknowledging the oral agreement may bar the Frauds Act, a claim of equitable estoppel may be brought against the Frauds Act defense, and the full performance doctrine will allow a contract action when the plaintiff has fully performed the terms of the oral agreement.

Full Performance Doctrine. If a party has fully performed their side of the agreement, then the Frauds Act won’t bar a contract action. There are also circumstances under which partial performance will suffice, but that topic is beyond this blog.

For anyone reading this blog, the important take-away is that you should look at the Frauds Act if you have any doubt that your agreement needs to be reduced to a writing. In my opinion, if the agreement is worth performing, then it should be worth the time and effort to put it in writing. Even if the agreement is simple and straight forward, it is a good idea to put the agreement in writing. This helps the parties to clarify their understanding and it forces the parties to express their understanding. This process leads to clarity. If the written contract helps to avoid confusion or misunderstanding in the future, then it has served its purpose. If you have ever litigated an oral contract, then you probably already understand the value and usefulness of a clean written contract.

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