The purpose of this blog post is to answer the most frequently asked questions that I receive as an Illinois eviction attorney. Because the COVID-19 pandemic and our governments’ responses are changing daily, the information contained in this post is likely to change. This information, however, is current as of July 6, 2019.
I am unable to pay rent. Can my landlord evict me for non-payment of rent?
No, not until late July 2020 at the soonest. For regular tenants of residential property (i.e. you live in the property you rent), two sets of laws govern what your landlord can and cannot do right now if you cannot pay rent.
First, there are Illinois Executive Orders. Governor J.B. Pritzker issued the first statewide disaster proclamation on March 12, 2020. This disaster proclamation was limited by its own terms to only being in effect for 30 days. The disaster proclamation has been continuously renewed every time it has been about to expire, with the most recent proclamation, the Fifth Gubernatorial Disaster Proclamation, being made on June 26, 2020 and being set to expire at the end of the day on July 26, 2020. It may be extended one or more additional times.
While there is a gubernatorial disaster proclamation in effect, Executive Order 2020-30 provides that “A person or entity may not commence a residential eviction action pursuant to or arising under [the Eviction Act], unless a tenant poses 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.”
For eviction cases relating to residential premises that are allowed to be in court, your landlord can proceed in court and obtain an eviction judgment against you. However, that eviction order cannot be executed. Executive Order 2020-10 provides that “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.” Therefore, until the Gubernatorial Disaster Proclamation is allowed to expire by the Governor, even if your landlord has an eviction order against you, the Sheriff cannot execute that order (i.e. show up at the house, force you to leave, and move your stuff to the curb).
So, unless your landlord started his eviction case against you prior to April 23, 2020, it is illegal for your landlord to file an eviction suit against you under state law now, and even if your landlord is allowed to be in court, you cannot be forced to move out of the property until the Governor says so.
Second, in addition to the state executive orders governing evictions in Illinois, there are federal laws at play. On March 27, 2020, the president signed the Coronavirus Aid, Relief, and Economic Security Act (P.L. 116-136) (CARES Act) into law. Section 4024 of the CARES Act applies to tenant-occupied residential rental properties with a federally-secured loan (e.g. Fannie Mae, Freddie Mac, FHA, VA) and prohibits landlords from initiating eviction proceedings or “charg[ing] fees, penalties, or other charges” against a tenant for the nonpayment of rent until after August 24, 2020. Section 4024(c) of the CARES Act additionally requires a landlord of a property to which the CARES Act applies to serve a 30-day notice if seeking to evict the tenant for any reason, not just non-payment of rent, and that 30-day notice cannot be served until after August 24, 2020.
How do you know whether your landlord is restricted by the CARES Act? That is a difficult question to answer. Fannie Mae and Freddie Mac have loan look-up tools on their websites that allow you to check to see if the loan is insured by either of those entities, but they require the loan holder’s social security number–good luck getting that. For VA loans, there may be some indication from the mortgage recorded with the county recorder that it is a VA loan.
On May 22, 2020, the Illinois Supreme Court issued a rule requiring landlords to include a certification with their filings stating whether the CARES Act applies to them. If your landlord lies on that form, or if your landlord fills it out without understanding what he’s certifying, it will be very difficult to disprove this statement.
So, the short answer is that if the CARES Act applies, your lanldord will have to serve you with a 30-day notice after August 24, 2020, that notice cannot expire for 30 days after service, and the earliest we will see viable eviction cases filed for properties subject to the CARES Act will be late September 2020.
What about commercial property? Can my landlord evict me from my commercial space for non-payment of rent?
Yes and no. There is nothing prohibiting a commercial landlord from filing an eviction lawsuit right now. However, Executive Order 2020-30 provides that “All state, county, and local law enforcement officers in the State of Illinois are instructed to cease enforcement of orders of eviction for non-residential premises, 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.” So, your landlord can file suit, litigate the case and win an order of eviction against you. However, until the gubernatorial disaster proclamation is lifted the Sheriff will not execute the eviction order. Because the sheriff is the only person entitled to execute eviction orders, you will be stuck in limbo until the disaster proclamations are lifted.
Do I still have to pay rent?
Yes. Both the Illinois executive orders relating to eviction and the federal CARES Act expressly state that nothing in those laws relieves you of the obligation to pay rent. It is just that your landlord cannot use the legal remedy of eviction if you fail to pay rent. It is in your best interest to attempt to pay rent. When the Gubernatorial Disaster Proclamations expire, you do not want to be faced with a bill for several months of rent and no way to pay it. You may be forced into bankruptcy if you are faced with such a large bill at the end of this pandemic.
I haven’t been paid rent in several months. What can I do?
Most mortgage loans are offering the ability to place your mortgage into forbearance–you still owe the money and interest is still accruing, but your obligation to pay right now is suspended. You should immediately investigate whether your lender will grant you a forbearance.
Additionally, it may be in your best interest to work something out with our tenant. I have had success negotiating agreements between tenants and landlords where the tenant agrees to move out in exchange for something. Sometimes the landlord pays the tenant to leave. Sometimes the landlord agrees to waive past-due rent. This type of settlement negotiation will not make you whole, but it will stop the bleeding. As unfortunate and unfair as it sounds, walking away battered, bruised but still alive is better than financially bleeding to death.
One thing you definitely should not do is engage in self-help. I should not have to say this, but changing the locks and throwing all of your tenants’ stuff out on the curb is a bad idea. Threatening them with physical harm is a bad idea. Harassing them constantly is a bad idea. Don’t do it.
I would like to collect an old judgment against a former tenant. Can I do that right now?
No. Executive Order 2020-25 suspends basically all of the ways to collect a judgment for consumer debt, and rent for residential property is a consumer debt. You will have to wait until the gubernatorial disaster proclamations expire.