The Incredible, Unkillable Moratorium: New Changes Amidst The Spread Of the Delta Variant

In this article, we explain updates and changes to the Illinois Eviction Process as of August 20th, 2021, including:

• Changes to the Federal Eviction Moratorium
• Changes to the Illinois Eviction Moratorium
• How does the Federal Moratorium affect the eviction process in Illinois?

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The Updated Federal Eviction Moratorium Issued on August 3, 2021

On August 3, 2021, the Federal Centers for Disease Control and Prevention (CDC) issued another temporary national moratorium on most evictions for nonpayment of rent to help prevent the spread of coronavirus, which originally began on September 4, 2020. This new moratorium is set to expire on October 3, 2021. The CDC put this measure in place citing the historic threat to public health posed by COVID-19, with the reasoning that an eviction moratorium would help ensure people are able to practice social distancing and comply with stay-at-home orders, as they would have a home in which to remain during any kind of lockdown.

To qualify under the CDC Eviction Moratorium (and in large part the Illinois Eviction Moratorium), a tenant needs to:

“provide an executed copy of the Declaration form (or a similar declaration under penalty of perjury) to their landlord, owner of the residential property where they live, or other person who has a right to have them evicted or removed from where they live.”

In essence, a Tenant must declare, under penalty of perjury, that:

1. The individual has used best efforts to obtain all available government assistance for rent or housing;
2. 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),6 (ii) was not required to report any income in 2019 to the U.S. Internal Revenue Service, or (iii) received an Economic Impact Payment (stimulus check) pursuant to Section 2201 of the CARES Act;
3. The individual is unable to pay the full rent or make a full housing payment due to substantial loss of household income, loss of compensable hours of work or wages, a lay-off, or extraordinary out-of-pocket medical expenses;
4. 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 nondiscretionary expenses; and
5. Eviction would likely render the individual homeless— or force the individual to move into and live in close quarters in anew congregate or shared living setting— because the individual has no other available housing options.

The CDC issued further guidelines for renters seeking moratorium protections back in October 2020. It allowed landlords to challenge tenant declarations and initiate eviction proceedings at any time, which still applies even in this new update.

However, tenants can still be evicted for:

1. Engaging in criminal activity on the property;
2. Threatening the health or safety of other residents;
3. Damaging or posing an immediate and significant risk of damage to the property;
4. Violating applicable building codes, health ordinances, or other regulations related to health and safety; and
5. Violating any contractual obligation other than the timely payment of rent, late fees, penalties, or interest.

Landlords in violation of the moratorium may still be subject to a fine of up to $100,000, one year in jail, or both; the fine increases to $250,000 if the violation results in the death of a tenant. Organizations found to be in violation of the moratorium may be subject to a fine of up to $200,000 per violation, or up to $500,000 per violation if the violation results in a death.

The Consumer Financial Protection Bureau (CFPB), the Federal Trade Commission (FTC), and now, the US Department of Justice (DOJ) will continue to monitor and investigate eviction practices to ensure landlords and property owners are complying with the federal, state, or local moratoriums.

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The Updated Illinois Eviction Moratorium Issued on July 23, 2021

Executive Order 2021-15 came as a surprise to some, but not too many in the legal field. Given the trending numbers of infections of the Delta Variant of COVID-19, it was only a matter of time until action was taken, especially in hotspots like Chicago.

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2021-15’s relevant language was terse:

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“Sections 1, 4, 5, 7, and 8 Executive Order2021-13, as amended by Executive Order 2021-14, are re-issued and extended through August 21, 2021.

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Section 2 of Executive Order 2021-13 is re-issued and extended through July 31, 2021, where after Section 2shall be rescinded.”

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If you didn’t catch that, Section 2 of 2021-13 states:

“A person or entity may not commence or continue 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.”

This means that landlords no longer must wait until a tenant poses a threat to health and safety or to property before filing an eviction action as of August 1, 2021.

But wait, there’s more – Illinois Supreme Court Order M.R. 30370, which governs the judicial aspect of the eviction moratorium states:

“Effective August 1, 2021, the Governor’s moratorium no longer prohibits the filing of new eviction actions. The Supreme Court temporarily stays all dispositive motions, trials on the merits, or judgments in residential eviction proceedings against a “covered person” (defined by Executive Order 2021- 13 as amended, reissued, or extended by any subsequent Executive Order) unless that person poses a direct threat to the health and safety of other tenants or an immediate and severe risk to property. ; initial return dates and status dates set by the court shall proceed. Notwithstanding the forgoing, where the defendant has been served and fails to appear on the return date, a motion for default may be heard only after the defendant is given notice to appear at a separate hearing on a motion for default.”

"This order expires on September 1, 2021.”

In essence, landlords can have their cake, but they can’t eat it, either. The filing of an eviction action is automatically stayed because the updated M.R. 30370 stays hearing on “dispositive” motions, trials, and even the entry of judgments. Without a trial and judgment, a landlord will not be able to obtain an Order of Possession.

There are certain exceptions, however:

“For a newly filed case to be exempt from the temporary stay on dispositive motions, trials on the merits, or judgments created by Paragraph 1 of this order, the filing of a complaint filed 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 Executive Order 2021-13 as amended, reissued, or extended by any subsequent Executive Order or (2) another stated exception to the Governor’s moratorium contained in Executive Order 2021- 13 as amended, reissued, or extended by any subsequent Executive Order applies”

In other words, a landlord must sign the same declaration as before: that they either didn’t receive a tenant declaration form from a tenant, or there is another exception:

“The defendant(s) poses a direct threat to the health and safety of other tenants; and/or the defendant(s) poses an immediate and severe risk to property; and/or The property at issue is non-residential”

Illinois’ definition of a “Covered Person” basically tracks the same as the Federal definition:

 
1. 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;
 
2. 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;
 
3. 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, considering other Non-Discretionary Expenses; and
 
4. 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.

M.R. 30370is still in place, but now, the floodgates of litigation are starting to open.

The Illinois Supreme Court followed suit with the Federal moratorium, 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.

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How Does the Federal Moratorium Affect Illinois Evictions?

For the first time, the Federal CDC Eviction Moratorium and the Illinois Eviction Moratorium are not in lockstep with each other. The Federal CDC Eviction Moratorium Expires on October 3, 2021, while the Illinois Moratorium Expires on August 21, 2021.

As of the date of this article, landlords, tenants, and their lawyers are waiting with bated breath, however, it is likely that the governor, and the Illinois Supreme Court, will keep its policies curtailing the litigation of eviction cases, until at least the expiration of the Federal Moratorium on October 3, 2021.

Moreover, the federal Eviction moratorium will affect there-filing of an eviction case. The Illinois Supreme Court only allows these cases to be re-filed “under a new case number when no longer barred by “any applicable moratorium or law”, which means, you guessed it, that the Federal moratorium must expire before any cases are re-filed.

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.