In this article, we explain the Illinois Eviction Moratorium, including:
- The changes to the Moratorium
- What has changed in the latest extension of the moratorium, and
- How does that affect the eviction process?
A brief look back at the last year
Learn about the full list of changes to eviction and landlord-tenant laws in our article Recent Changes to Illinois Landlord-Tenant Disputes and Evictions 2021.
Executive Order 2020-10, promulgated on March 20, 2020 would be an order that would live in infamy. In one fell, swoop, the Governor decreed:
“Pursuant to the Illinois Emergency Management Agency Act, 20 ILCS 3305/7(2), (8), and (10), all state, county, and local law enforcement officers in the State of Illinois are instructed to cease enforcement of orders of eviction for residential premises for the duration of the Gubernatorial Disaster Proclamation. No provision contained in this Executive Order shall be construed as relieving any individual of the obligation to pay rent, to make mortgage payments, or to comply with any other obligation that an individual may have under tenancy or mortgage.”
And just like that, landlords were locked in with their tenants, with no easy way to get them out, should they need to. With few exceptions, and a growing number of people infected with COVID-19, as well as fears that people kicked out of their dwellings would exponentially inflate infection, the Governor forced landlords to become overnight public housing providers.
Read our full article on The Eviction Process in Illinois Explained.
On April 23, 2020, the Governor issued Executive Order 2020-30, in part, because the ongoing public health emergency required further action to prevent the commencement of residential eviction proceedings. Then, on April 30, 2020, Executive Order 2020-33 was handed down, which amended Executive Order 2020-30, to continue the prohibition on enforcement of residential eviction actions, having been extended by multiple subsequent Executive Orders.
On November 13, 2020, the Governor issued Executive Order 2020-72, which added an important provision, in the process of Eviction – the now-required “Tenant Declaration Form”, which a Landlord had to serve on a tenant personally, like an Eviction notice in which the Tenant had to swear, under penalty of perjury, that they were a “Covered Person” under the moratorium. Otherwise,
“A person or entity may not commence a residential eviction action pursuant to or arising under 735 ILCS 5/9-101 et seq. against a Covered Person unless that person poses a direct threat to the health and safety of other tenants or an immediate and severe risk to property.”
A “Covered Person” means any tenant, lessee, sub-lessee, or resident of a residential property who provides to their landlord, the owner of the residential property, or other person or entity with a legal right to pursue an eviction or possessory action, a Declaration under penalty of perjury indicating that:
- the individual either (i) expects to earn no more than $99,000 in annual income for Calendar Year 2020 (or no more than $198,000 if filing a joint tax return), (ii) was not required to report any income in 2019 to the U.S. Internal Revenue Service, or (iii) received an Economic Impact Payment pursuant to Section 2001 of the CARES Act;
- the individual is unable to make a full rent or housing payment due to a COVID-19 related hardship including, but not limited to, substantial loss of income, loss of compensable hours of work or wages, or an increase in out-of-pocket expenses directly related to the COVID-19 pandemic;
- the individual is using best efforts to make timely partial payments that are as close to the full payment as the individual’s circumstances may permit, taking into account other Non-Discretionary Expenses; and
- eviction would likely render the individual homeless—or force the individual to move into and live in close quarters in a new congregate or shared living setting—because the individual has no other available housing options.
The Illinois Supreme Court followed suit with the promulgation of Order M.R. 30370, which set forth a new process for Eviction filings in all Illinois state courts:
- The filing of a complaint in any eviction case must be accompanied by the attached certification form prescribed by this order to demonstrate that the plaintiff/landlord has provided each defendant/tenant with a form declaration made available by the Illinois Housing Development Authority (or a similar declaration under penalty of perjury) prior to commencement of the residential eviction proceeding and either (1) has not received a qualifying declaration from any defendant/tenant that they are a “covered person” under the Executive Order or (2) another stated exception to the Governor’s moratorium contained in the Executive Order applies.
- Promptly upon filing, eviction cases are to be referred by the Clerk to a judge designated by the Court to review all such complaints.
- 3. If the reviewing judge determines that the required certification form has not been filed, or that it fails to meet the requirements of the Executive Order, the judge shall issue an order dismissing the action, without prejudice, sealing the record, and providing that summons on the case may not be issued. If summons has already been issued or has been placed for service, the order must direct the plaintiff/landlord to take reasonable steps to recall the summons from the process server.
- If the reviewing judge determines that the required certification form, on its face, properly meets the requirements of the Executive Order, the matter may proceed to be heard. This preliminary determination that the certification form meets the requirements of the Executive Order is not binding; the trial court retains the ability to hear and determine whether the Governor’s moratorium applies in a given case.
- 5. Nothing in this order grants any plaintiff/landlord the authority to enforce an eviction order in contravention of any provision of law, including any applicable moratorium.
- For any action dismissed, without prejudice, pursuant to the terms of this order, the case may be re-filed under a new case number when no longer barred by the Executive Order, with any filing fee for the refiled action being waived.
- This order is effective immediately and shall remain in effect until further order of this Court.
M.R. 30370 is still in place, but now, the floodgates of litigation are starting to open up.
What has changed most recently?
On May 28, 2021, the Governor, surprisingly, gave an unexpected announcement – “Executive Order 2020-72, as amended by Executive Order 2020-74, Executive Order 2021-01, Executive Order 2021-05, and Executive Order 2021-06, is re-issued in its entirety and extended through June 26, 2021.”
Then, on June 11, 2021, the Governor issued Executive Order 2021-13, which all but threw the gates open to Eviction court:
“A person or entity may not commence a residential eviction action pursuant to or arising under 735 ILCS 5/9-101 et seq. against a Non-Covered Person who does not owe rent unless that person poses a direct threat to the health and safety of other tenants or an immediate and severe risk to property. This provision is effective until June 25, 2021, whereafter this Section shall be rescinded.”
Section 4 states:
“All state, county, and local law enforcement officers in the State of Illinois are instructed to cease enforcement of orders of eviction for residential premises entered against a Covered Person or Non-Covered Person, unless that person has been found to pose a direct threat to the health and safety of other tenants or an immediate and severe risk to property. This section shall not apply to orders entered before March 20, 2020 and, beginning on June 25, 2021, to orders entered against Non-Covered Persons. Enforcement of eviction orders must conform with the requirements of 735 ILCS 5/9-117.”
The Illinois Supreme Court followed suit, amending M.R. 30370 on April 6, 2021, which now allows Landlords to challenge tenant declaration forms:
“If a plaintiff/landlord wishes to raise a challenge to a tenant’s reliance on the protections of the Executive Order, that matter must be raised by way of a motion which identifies with specificity the legal or factual basis, where facts pled are sworn under penalty of perjury, for any such challenge. The burden to sustain such a challenge remains at all times with the plaintiff/landlord. Such motions should be reviewed by a judge before the matter is set for a hearing, and a hearing should only be set if the face of the motion reflects compliance with this paragraph and a viable basis for relief. If the reviewing judge denies the motion, the judge shall issue an order dismissing the action, without prejudice, and sealing the record.”
However, in an unsurprising twist, the Illinois Supreme Court also held that:
For any action dismissed, without prejudice, pursuant to the terms of this order, the case may be re-filed under a new case number when no longer barred by any applicable moratorium or law, with any filing fee for the refiled action being waived.
What has changed when it comes to Evicting a Tenant?
Pretty much everything. State and local law enforcement authorities now can enforce eviction orders that were entered before March 20, 2020. Then, since June 25, authorities also can start enforcing eviction orders entered against tenants who are “Non-Covered” persons under the Governor’s existing Executive Order. The remaining provisions prohibiting enforcement of eviction orders against “Covered Persons,” unless the tenant is found to pose a direct threat to the health or safety of other tenants or an immediate and severe risk to property, remain in place.
But now, landlords can challenge Tenant Declarations, a powerful tool when tenants are not being careful with their pleas for help.
To learn more about How Does the Federal Eviction Moratorium Affect You in Illinois, read our article here.
Evictions are a highly technical aspect of civil real estate litigation. Without a knowledgeable attorney on your side, getting a tenant out of your apartment, or defending yourself against a crazy landlord, can be an exercise in frustration. Call us today at (630) 324-6666 or fill out our confidential consultation form for help with your eviction matter.
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