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This article will discuss recent developments in Landlord Tenant laws due to Covid-19 pandemic and other notable changes affecting Landlord Tenant law in Illinois.
There has been sweeping changes to the landscape of Landlord Tenant laws recently. This article will discuss recent developments in Landlord Tenant laws due to Covid-19 pandemic and other notable changes affecting Landlord Tenant law in Illinois.
Landlord Tenant Law Basic Background
In Illinois, the Eviction Act (formerly known as the Forcible Entry and Detainer Act), 735 ILCS 5/9-101 et. Seq. governs eviction procedures a landlord must follow in Illinois. There are basic requirements a landlord must file when he or she initiates an eviction, such as:
- Serve a proper notice upon the tenant, such as a five-day notice for failure to pay rent.
- Once the notice has expired, the landlord must serve a complaint upon a tenant. The landlord can serve the tenant personally or employ what is called a special process server to effectuate service on the tenant personally or by substitute service of a person older than the age of 13 that resides at the residence.
- Once service is complete, there will be a first court date. On this first court date, it is up for trial.
- It is important if you are the tenant that you appear on the first court date. If you fail to appear, a default judgment or ex-parte judgment will be entered against you and the landlord can file the judgment, which is called an Eviction Order, with the sheriff after the stay expires, for the sheriff to evict.
- It is important to remember that a landlord cannot perform what is called “self-help” by changing the locks to evict a tenant. The sheriff is the only party that may evict a tenant with a court order, called the eviction order.
- Landlords cannot constructively evict a tenant as well. This means that a landlord cannot do things, such as turn off a tenant’s utilities, in order to get the tenant to move or pay rent. As stated above, only a sheriff may evict a tenant.
- If the tenant appears on the first court date, a few things can happen. (Note, this is the procedure pre-Covid 19 pandemic. Procedures since the Covid-19 pandemic will be discussed below. ) The tenant can ask the court for a continuance to obtain legal counsel for trial. A judge will almost always grant a short continuance for a tenant to do so. The tenant can file a jury demand upon the plaintiff (landlord), or the tenant can ideally reach a settlement with the plaintiff or his or her attorney. Settlements are generally favored by the courts.
- If a tenant files a jury demand, in Cook County, it will be transferred to another room where the presiding judge will assign the case to a jury court room.
- If the parties cannot reach a settlement agreement, the case will be set for trial, which can be that same day or another day, usually within one week.
- Evictions Actions are summary procedures and the courts frown upon issuing prolonged briefing schedules and extensive discovery, as is common in other areas of litigation.
- Trials typically proceed to a bench trial, which is a trial before a judge.
- In a bench trial, the plaintiff or plaintiff’s attorney has the burden of proving up their case and thus, presents their case first. Typically, it is more typical of a prove-up hearing. The plaintiff will show the court that notice was given and was properly served, as was the complaint. If there are money damages (back rent, and/or costs), the Plaintiff will do so by providing an affidavit of the landlord or having the landlord appear in court to testify to a ledger of accounting in a case for past due rent.
- The defendant (tenant) will have a chance to present his or her case to the judge, as well as cross examine plaintiff’s witnesses.
- Usually bench trials are very brief.
- The judge will make a ruling. If the plaintiff prevails, an Eviction Order (formerly an “Order for Possession”) will be entered and once the stay expires, the Eviction Order will be placed with the sheriff to evict the tenant.
- It is important to have legal counsel representing your side because eviction cases move at a fast pace.
Evictions since the Covid-19 Pandemic
The most sweeping changes to Landlord Tenant Law in Illinois began with the onset of the Covid-19 pandemic of March 2020. The courts, schools, and non-essential businesses shut down for an indefinite time period. Governor J.B. Pritzker announced a moratorium on residential evictions in Executive Order 2020-10 on March 20, 2020. The Executive Order directed the sheriff’s office from carrying out residential evictions due to the public health crisis. Governor Pritzker extended the moratorium each month until he issued Executive Order 2021-13 on June 11, 2021, which carved out exceptions to the eviction moratorium described below:
- “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.
- “Declaration” means the form declaration made available by the Illinois Housing Development Authority (or a similar declaration under penalty of perjury) that tenants, lessees, sub-lessees, or residents of residential properties who are covered by this Executive Order may use to invoke the protections of this Executive Order. Each landlord, owner of a residential property, or other person or entity with a legal right to pursue an eviction or possessory action must provide each tenant, lessee, sub-lessee, and resident with a Declaration at least 5 days prior to commencement of any residential eviction proceeding including, but not limited to, at least 5 days prior to the issuance of a notice of termination of tenancy. Service of the Declaration must conform with the requirements of 735 ILCS 5/9-211.
- “Non-Covered Person” means any tenant, lessee, sub-lessee, or resident of a residential property who does not provide a Declaration 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.
- “Non-Discretionary Expenses” include, but are not limited to, food, utilities, phone and internet access, school supplies, cold-weather clothing, medical expenses, child care, and transportation costs, including car payments and insurance.
Executive Order 2021-13 permitted some evictions to proceed if they fell within the purview of the exceptions outlined in the Executive Order. Even though Executive Order 2021-13 did allow for some evictions to proceed, the problems of the evictions moratorium of March 2020 still existed. Many tenants stopped paying rent due to Covid-19 hardships or some tenants did not pay regardless of the Covid-19 pandemic. Many smaller “mom and pop” landlords could no longer pay their mortgages and property taxes on their properties without a steady stream of rental income. To help both landlords and tenants, federal and state funded programs were rolled out.
The Illinois Housing Development Authority (“IDHA”) began a grant program that paid landlords past due rent for the previous twelve months and paid the tenant’s rent for three months prospectively. Both the landlord and the tenant needed to submit an application. If the landlord applied for the grant, the landlord would not be permitted to file an evictions lawsuit while the application for the grant money was pending and for the duration of the grant period. This program helped to assist cash-strapped landlords and prevent potential homelessness for the tenants.
On May 17, 2021, Illinois Governor J.B. Pritzker signed into law the “Covid-19 Emergency Housing Act”. This law mandates that eviction court cases filed between March 2020 and August 2022 be sealed. Prior to the Covid-19 pandemic, eviction cases were only sealed under certain circumstances, for example, a post-foreclosure eviction action is always sealed from the time of filing. An unsealed eviction case means that it appears on the tenant’s credit report and a potential landlord can see that the tenant had previously been involved in eviction court proceedings. The new law seals all cases filed from March 2020-August 2022 and prevents screening companies from reporting sealed eviction records to a prospective landlord. When a filed is sealed by the court, it will not appear in the court public record system; it as if the eviction filing never happened. The law benefits tenants from facing future barriers to housing.
What is happening now in Landlord Tenant Law Today?
Due to the Covid-19 pandemic, the landscape is still far from normal, but changes have been made to ease into the gradual re-opening up of the world. One of the biggest changes was Governor Pritzker’s Executive Order 2021-23, which effectually ended the evictions moratorium. This executive order permitted evictions actions to resume as they did pre-Covid-19.
Another big change announced on September 13, 2021, was the Illinois Supreme Court Order M.R. 30370. The order laid out a new grant program to assist landlords and delinquent tenants with funding to cover up to one year in back due rent payments and three months of prospective rent payments to the landlord. This program called, Court-Based Rental Assistance program, or “CBRAP” is available starting in October 2021 in all Illinois circuit courts, except for Cook County, which will have its own court based rental assistance program.
Another change has been made to eviction courtroom procedures since the Covid-19 pandemic occurred. In Cook County, a free mediation program called the Early Resolution Program, or “ERP” was initiated. Now when an evictions case is filed in Cook County, a judge will often grant a defendant who does not appear, a week-long continuance in order to appear in court. If that defendant appears on the next court date, it will be continued for another week so that the defendant can consult with the free legal services provided by the ERP program. If the defendant does appear on the first court date, a continuance for a week will usually be granted so the defendant can review his or her case with the ERP attorney. The goal is for the ERP to provide a resolution for the plaintiff and landlord. DuPage County also has a similar mediation program established pursuant to Article 14 of the DuPage County Local Rules.
Another change in Landlord-Tenant Law is the passage of the Cook County Residential Landlord Tenant Ordinance (“RLTO”), which took effect on June 1, 2021. This ordinance is modeled on the City of Chicago’s Residential Landlord Tenant Ordinance. Like Chicago’s ordinance, the Cook County RLTO is very tenant friendly and imposes costly fines to landlords that violate the ordinance. The Cook County Ordinance, like Chicago’s RLTO, requires that landlords maintain the units in a habitable condition, which includes essential services like heat, running water, hot running water, gas, heat, plumbing and even internet access if the lease requires it. The new ordinance prohibits a lease that waives a tenant’s right to a jury trial and no longer permits a tenant to waive notice before legal action is taken.
Landlord Tenant Law has undergone a seismic shift since the onset of the Covid-19 Pandemic. An experienced Landlord Tenant lawyer can assist you whether you are a landlord or tenant. Please call 630-324-6666 to discuss your options with an experienced Landlord Tenant lawyer today.
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