Brief Update on Matters:
1. State of Illinois Eviction Moratorium – Exceptions for Nonpayment of Rent and Substantial Lease Violations. On January 8, 2021, Governor Pritzker issued Executive Order 2021-01, which extends the exceptions for limited eviction filings present in Executive Order 2020-74 through February 6, 2021.
To evict a tenant based on the tenant’s failure to pay rent, the landlord must first provide the tenant a “declaration” (available from IHDA or your attorney) at least five days before serving the tenant a lease termination notice. If the tenant does not return the declaration to the landlord, the landlord can file an eviction action based on the tenant’s failure to pay rent. If the tenant returns the declaration but the landlord believes the declaration contains false statements, the landlord should consult an attorney to discuss the possibility of filing an eviction action to challenge the tenant’s statements in the declaration and obtain an eviction order.
Landlords can file eviction actions against any tenant or occupant who poses “a direct threat to the health and safety of other tenants” or who poses “an immediate and severe risk to property.” Landlords should still serve the declaration to these tenants prior to serving a lease termination notice.
The landlord must serve the declaration in compliance with Section 9-211 of the Illinois Eviction Act, which means the landlord must hand-deliver the declaration to someone at the premises who is at least 13 years’ old or via another permissible method. Landlords are strongly encouraged to consult an attorney concerning this requirement.
Unless the tenant poses a direct threat to the health and safety of other tenants or an immediate and severe risk to property, the landlord cannot file an eviction action against (1) a tenant who refuses to vacate the premises upon the expiration of the tenant’s lease; (2) a tenant who violates the lease in minor ways; or (3) a tenant who fails to pay rent who returned the declaration to the landlord and which the landlord believes the declaration is truthful.
Landlords may now be able to file eviction actions against squatters. A squatter is an occupant without a lease, rental agreement, or right-to-possession agreement to occupy the premises.
Commercial eviction cases based on nonpayment of rent or any other lease violation can still be filed.
Eviction orders for residential property cannot be enforced through February 6, 2021. Eviction orders for commercial property and residential cases satisfying the safety/property damage exceptions are currently being enforced.
Landlords should be aware that local court systems like Cook County have imposed additional requirements on landlords to file eviction actions. Consult an attorney with questions.
2. CDC Nationwide Eviction Prohibition – Extended by Congress and the President through January 31, 2021. On September 4, 2020, the United States Centers for Disease Control and Prevention (“CDC”) published an order purporting to halt all residential evictions in the United States (“Order”). The Order prohibits any person from evicting a tenant who provides to the person a sworn declaration that the tenant cannot pay rent. The Order expired December 31, 2020, but in January 2021 the President of the United States signed a bill extending the CDC’s Order through January 31, 2021.
The CDC’s Order does not prohibit the eviction of (1) nonpaying tenants who do not provide the landlord the required sworn declaration; (2) tenants engaging in criminal activity while on the premises; (3) tenants threatening the health or safety of other residents; (4) tenants damaging or posing an immediate and significant risk of damage to property; (5) tenants violating any applicable building code, health ordinance, or similar regulation relating to health and safety; or (6) tenants violating any other contractual obligation, other than the timely payment of rent or similar housing-related payment (including nonpayment or late payment of fees, penalties, or interest).
The Order contains criminal penalties for its violation.
The Order applies only in jurisdictions with less tenant protections, so it is unlikely this Order applies in Illinois, as Governor Pritzker’s Executive Orders provide greater tenant protections than does the CDC’s Order.
3. Federal CARES Act. The federal CARES Act prohibits an owner or lessor of a “covered dwelling” from charging late fees, serving a notice to vacate, or filing an eviction case until July 27, 2020, against a tenant based on the tenant’s failure to pay rent.
A “covered dwelling” is, essentially, a property with federal funding or insuring, such as a federally-backed mortgage or Section 8 funds. The Act does not apply to properties that are not “covered dwellings” as defined in the Act.
When the prohibition expires on July 27, 2020, the tenant must be given a 30-day notice (instead of a 5-day notice) to pay rent or vacate. As a result, the earliest an eviction case can be filed against a tenant subject to the Act is August 27, 2020, assuming timely and proper service of the 30-day notice.
In Spring 2020, the Illinois Supreme Court promulgated a rule requiring attachment of an affidavit to every residential eviction complaint identifying whether the CARES Act does or does not apply to the subject property. If the complaint does not attach the affidavit, then the plaintiff must provide testimony in court concerning whether the CARES Act is or is not a covered property. This rule expired August 24, 2020.
If a landlord has a property covered by the CARES Act and is seeking to recover for a rent default that occurred between March 27, 2020, and July 27, 2020, the landlord may still be subject to the Act. You should consult an attorney with questions.
4. Chicago Eviction Protection Ordinance. The Chicago Eviction Protection Ordinance affords tenants an additional seven days after a 5-day notice expires to pay the rent due or come up with an agreement with the landlord to, among other things, repay the rent over not less than 60 days.
The ordinance requires the landlord to serve a statement of rights to the tenant with the 5-day notice, and it requires the landlord to engage in good-faith negotiations with a tenant who claims a loss of income related to COVID-19. If you are a Chicago landlord, you will want to consult an attorney to understand your obligations under this new ordinance. The ordinance is currently set to expire April 7, 2021.
5. Circuit Court of Cook County “Early Resolution Program.” The Circuit Court of Cook County recently established a program to assist tenants and other debtors. The program changes how eviction cases are heard and disposed of in Cook County. The program will have the practical effect of adding procedural obstacles to landlords regaining possession of their property, slowing the eviction process, and increasing landlords’ legal expenses. Landlords are encouraged to consult an attorney regarding this new program.
6. Illinois Supreme Court Affidavit Requirement for Evictions. On December 22, 2020, the Illinois Supreme Court issued an order requiring plaintiffs in eviction actions to attach a form affidavit to the complaint to affirm that Governor Pritzker’s eviction moratorium orders do not apply to the case. Landlords are encouraged to consult an attorney regarding this new order.
7. Chicago Fair Notice Amendment to the RLTO. Landlords subject to the Chicago Residential Landlord and Tenant Ordinance are now required to give tenants greater notice before nonrenewing the tenant’s lease or increasing rent. For tenancies six months to three years, the landlord must give the tenant 60 days’ notice of the landlord’s intent to not renew the lease or increase the rent.
For tenancies greater than three years, the landlord must give the tenant 120 days’ notice of the landlord’s intent to not renew the lease or increase the rent. Other duties of the landlord may apply. As a result, landlords are encouraged to consult an attorney to understand their obligations under this new ordinance, especially if the landlord misses a deadline to serve a nonrenewal and/or rent-increase notice.
8. Chicago Right-to-Cure Amendment to the RLTO. Tenants whose leases are subject to the Chicago Residential Landlord and Tenant Ordinance now have a one-time right to cure a nonpayment of rent default up until the point an eviction order is entered against the tenant if the tenant pays (1) all the unpaid rent owed from the date of the termination notice to the date of payment, (2) court costs to file the eviction case, and (3) court costs and fees for service of process (summons for court).
Unfortunately, the tenant has a one-time right to cure the default even without paying the landlord’s attorney’s fees. Other rights of the tenant and duties of the landlord may apply. As a result, landlords are encouraged to consult an attorney to understand their obligations under this new ordinance.
9. Notice and Lease Attachment to Eviction Complaints. A new Illinois Supreme Court Rule requires landlords to attach the termination notice to the complaint upon filing. When the eviction action is based on a tenant’s violation of the lease (other than failing to pay rent), the landlord must also attach relevant portions of the lease to the complaint. This new rule applies to all landlords in Illinois. As a result, landlords should immediately consult an attorney to understand their obligations under this new rule.
10. Indiana Eviction Filings. The Indiana moratorium on eviction filings expired August 14, 2020. As a result, we are now back to assisting our clients with Indiana properties in enforcing their rights against defaulting tenants. If you have property in Northwest and North-Central Indiana, we can help you!