COVID-19 UPDATE from Bellas & Wachowski

New Hoops for Landlords to Jump Through on Eviction Lawsuits

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Tenant Evictions

Updated October 19

Gov. J.B. Pritzker issued an executive order on October 16 extending the statewide moratorium on residential evictions for another 30 days. Pritzker first put a hold on residential evictions through an executive order on March 20, the same day he issued a statewide stay-at-home order in response to the COVID-19 pandemic

Updated August 24

Chicago landlords have extra hurdles in front of them if they want to evict tenants between now and September 25 as stipulated by the COVID-19 Eviction Protection Ordinance that passed City Council, and all Illinois landlords face a different terrain under Rules 120 and 139 promulgated by the Illinois Supreme Court, both of which occurred last month.

Illinois’ Governor entered Executive Order 2020-30  in March which stayed all evictions.  This Executive Order 2020-30 was re-issued in its entirety and extended through August 22, 2020, after which the prohibition on enforcement of orders of eviction for non-residential premises shall be rescinded.   The provisions of Section 2 and 3 of Executive Order 2020-30, as amended by Executive Order 2020-33, prohibits the commencement of residential eviction actions and the enforcement of orders of eviction for residential properties and remains in effect to allow the Illinois Housing Development Authority to distribute monetary assistance under the Emergency Rental Assistance and Emergency Mortgage Assistance programs directly to landlords or property owners on behalf of eligible tenants or, for eligible homeowners, directly to the mortgagor’s loan servicer.   So, no evictions can be filed in the State of Illinois under after August 22.

UPDATED AUGUST 21:   Illinois Governor’s Executive Order 2020-30(3)  extended the stay on residential evictions until September 21 unless “the tenant has been found to pose a direct threat to the health and safety of other tenants, an immediate and severe risk to property, or a violation of any applicable building code, health ordinance, or similar regulation”.   However, this order does relieve a tenant of obligation to pay rent or comply with any other obligation that an individual or entity may have pursuant to a lease or rental agreement.   THIS DOES PROHIBIT LANDLORDS FROM FILING EVICTION SUITS.   The Sheriff will not be able to enforce an order of  eviction during the stay.  Practically, there will be a glut of evictions once the stay is lifted and the Sheriff does not have the manpower to handle a flood of eviction cases so it is unknown how long evicted tenants will be able to stay in the residence.

Chicago Ordinance

Unfortunately with the new Chicago laws passed on June 17 and last week, all 5-Day notices (or any demands for unpaid rent) served on Chicago tenants after March 20 are voided.   Now, when Chicago landlords issue five-day notices of eviction for nonpayment of rent, landlords are required to inform tenants of their rights under the ordinance, which include the ability to state they have lost income as a direct or indirect result of the pandemic. They can do so by letter, e-mail or text message, and they gain an additional seven days for a total of 12.    The notice under the COVID-19 Eviction Protection Ordinance which must be served on tenants with the five-day notice can be found here.

The potential claims that can be made under the Chicago ordinance include being laid off from work, having their work hours reduced, having to isolate at home because of a coronavirus diagnosis or possible exposure, and having to care for someone else impacted by COVID-19.

During the 12-day period, under the ordinance, the landlord must contact the tenant and try to agree on a plan to avoid eviction, which could amount to a repayment schedule, mediation, arbitration, use of security deposit to cover the missed rent, or an agreement that the tenant will move out but the landlord will not seek an eviction judgment.

Repayment plans must provide at least two months for the tenant to make good on each month of missed rent, and the ordinance also sets out stipulations like the interest and fees a landlord can charge for missed rent, what evidence tenants must show in regard to claimed COVID-19 impact, and how the use of security deposit would play out.

While the ordinance doesn’t say the landlord and tenant must come to an agreement, they must make a “good faith effort”—and the landlord files an eviction case, but a tenant convincingly shows their landlord has not done so, the judge is required to dismiss the eviction case.

To begin negotiations toward either an agreement or an eviction proceeding, the landlord must provide two notices along with their demand for rent: a disclosure notice published by the city’s Department of Housing that lays out much of what’s stated here, as well as a draft notice for the tenant to return to the landlord within the five-day window, along with the documented evidence of the financial impact they have sustained due to the pandemic.

Landlords would be best served to serve both notices with a cover letter explaining what’s in them—and their best option would be to offer an installment repayment plan for the tenant to catch up, which can be longer than the 60-day minimum. This seems like a much better idea from the landlord’s standpoint than arbitration or security deposit credit.

Supreme Court Rules

Illinois Supreme Court Rule 120 requires that eviction complaints include a copy of the written eviction notice or demand, as well as germane passages from the lease as applicable.  Amended Illinois Supreme Court Rule 139 enables plaintiffs to attach an affidavit using a standardized Illinois Supreme Court form, either in place of an eviction or demand, and/or when there is no written lease.

The court has said this rule should bring clarity to the law, practices and procedures in eviction cases by laying out requirements when filing a complaint, in terms of attaching demands, termination notices, proof of service of either, as well as relevant portions of leases.

It’s important to note that when it comes to an eviction suit, the notice that landlords provide their attorneys must be an exact duplicate of the one served to the tenant. The notice should contain a total amount owed without itemizing months or late charges. And to guard against the tenant claiming they were not home during the service, the landlord should either bring a witness or take a dated picture of the tenant as they’re being served.