UPDATE: Order 30 has been extended to June 27, 2020. In addition to locking all of Illinois down for another month, yesterday, Governor Pritzker signed another executive order (number 2020-30) that affects all Illinois landlords and puts a stop to evictions for the time being. The order basically rips the guts out of any reasonable ability to enforce a lease and paves the way for tenants to stop paying rent. The original stay at home order issued by the governor had put a state-wide stop to the enforcement of residential evictions for the duration of the order. This order goes further.
The governor recites that “residential evictions are contrary to the interest of preserving public health by ensuring that individuals remain in their homes during this public health emergency”. He goes on to recite that “protections for tenants of non-residential properties are necessary to ensure that Essential Businesses and Operations… are able to continue providing necessary goods and services…” So this order does not just apply to residential properties, it also applies to commercial properties. This is a “novel” concept, as business renters are usually not granted the same deference as residential renters.
Residential Eviction Filing Prohibited
Section 2 of the Order indicates the new rules we will be following for RESIDENTIAL eviction situations:
Section 2. A person or entity may not commence a residential eviction action pursuant to or arising under 735 ILCS 5/9-101 et seq., 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. Nothing in this Executive Order shall be construed as relieving any individual of the obligation to pay rent or comply with any other obligation that an individual may have pursuant to a lease or rental agreement. This Executive Order does not supersede any provision of any other prior Executive Order.
So let’s break this down. No landlord may “commence”** any residential eviction action unless the tenant fits one of three criteria: (1) the tenant poses a direct threat to the health and safety of other tenants; (2) there is an “immediate and severe” risk to the property; or (3) the tenant is in violation of a building code, health ordinance, or similar regulation. Those three situations are going to be pretty rare. Now, let’s acknowledge that the only difference between now and when the initial order was entered is that before, while we could not proceed with a case, we could at least file a case. I filed a few Cook County evictions earlier this week and those evictions are set for LATE JUNE. I can only imagine the flood of evictions that will be filed as soon as the stay at home order is lifted and the initial return dates we will be getting for those. At this point, provided that a landlord is not otherwise prohibited by the CARES Act from doing so, a landlord can merely serve an eviction notice.
**UPDATE: landlords should be mindful of the fact that there is a certain line of thinking that the “commencement” of an eviction may begin with the service of a notice. This is a gray area that will likely have to be fought in the courts.
Commercial Eviction Enforcement Suspended
Section 3 of the order deals with Sheriffs’ enforcement of pending eviction orders and reads as follows:
Section 3. 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. Nothing in this Executive Order shall be construed as relieving any individual or entity of the obligation to pay rent or comply with any other obligation that an individual or entity may have pursuant to a lease or rental agreement. The continued need for this directive shall be evaluated upon issuance of any new Gubernatorial Disaster Proclamation.
So this is basically brings non-residential eviction in line with residential ones, with the same three exceptions coming into play. For any landlords who were through the eviction process, received an eviction order, and were merely waiting for the sheriff to enforce the order, that wait will continue. I suspect that we will be getting new orders from the various Circuit Courts soon as well.
Insult to Injury
And all the while, the Governor’s order points out that nothing in his order ” shall be construed as relieving any individual or entity of the obligation to pay rent or comply with any other obligation that an individual or entity may have pursuant to a lease or rental agreement.” Well, with no power to enforce any remedies against non-paying tenants, those words ring very hollow. Very Hollow. Prior to now, landlords at least had the threat of eviction that could help them work out a forbearance or other deal with a tenant. A tenant now has little or no incentive to cooperate.
And what of the evictions that are delayed, with eviction orders already entered, just waiting to be enforced? What about the extra legal fees landlords will incur having their attorneys go to court to extend the enforceability of those orders (after, I am sure, a huge wait to get on the docket to get in front of a judge!).
Let’s get this clear, if a tenant failed to make a March rent payment (and then fails to pay in April, and May, and, of course, June), the landlord can’t file an eviction case until June 1 at the earliest. Based on the court dates we are getting this week, I would anticipate August court dates, and if everything goes well and there is one trip to court and a one week stay, I anticipate the Sheriff’s timeline to be 8-10 weeks thereafter to enforoce, at best, a landlord who didn’t get paid in march will have that situation cleaned up by October at the earliest. Lovely. And what of the lost rent? Kiss that rent good bye. As usual, landlords get left holding the bag.