“Everything’s fine today, that is our illusion”
One of my readers was quick to provide me with a copy of the Governor’s new executive order before it is available to the general public on the web, so here’s a breakdown.
For reasons that will become clear in a moment, let’s start in Section 2 which is going to provide the main rule for residential eviction filings. The new order, known as Executive Order 2020-72 (click here to see a copy of the order) indicates that:
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. (emphasis added)
Okay, that’s different. First, we have the added concept of a “covered person”. Where have we heard about “Covered Persons” before? Oh yeah… in the Center for Disease Control order that allows a moratorium for non-payment of rent evictions until December 31, 2020. We’ll get to what a Covered Person below. Second, we have a change to the exceptions that would allow a landlord to file a residential eviction. Let’s refresh our recollection about the much bigger and bulkier language of the original executive order banning residential evictions in Section 2 of Executive Order 2020-30:
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.
Interesting. We used to be able to file a residential eviction under three exceptions: (1) if the tenant poses a direct threat to the health and safety of other tenants; (2) if the tenant poses an immediate and severe risk to property; or (3) if the tenant causes a violation of any applicable building code, health ordinance, or similar regulation. Under the new language in Executive Order 2020-30, there are now only two exceptions: (1) if the tenant poses a direct threat to the health and safety of other tenants; or (2) the tenant poses an immediate and severe risk to property. So, item 3 was removed. So, if a tenant is violating building codes, health ordinances, or similar regulations, that is no longer an exception.
But, we’ve added this bit about Covered Persons. It would seem that there is NO prohibition against the FILING of an eviction complaint under the Illinois Eviction Act against a NON-Covered Person. That’s good, right? We can evict a tenant who is not a covered person if we are in the market for an eviction. So, how does one get to be a “Covered Person”? A covered person is a tenant, lessee, sub-lessee, or resident of a residential property (so basically, anyone who has a tenancy) who provides their landlord with a “Declaration under penalty of perjury”. This does sound a good deal like the Center for Disease Control protocol. In that protocol, Tenants were also required to provide a “declaration” to their landlord.
What needs to be in the Governor’s “declaration”? The Executive Order indicates that a tenant must state under penalty of perjury that:
- The individual either:
- 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); or
- the individual was not required to report any 2019 income to the U.S. Internal Revenue Service; or
- the individual received an Economic Impact Payment under Section 2001 of the CARES Act
- The individual is unable to make full rent/housing payments due to Covid-19 hardship (such as substantial loss of income, loss of compensable hours of work or wages, or an increase in out-of-pocket expenses directly related to Covid-19)
- The individual is using “best efforts” to make timely partial payments as close to full payment as circumstances permit (taking into account non-discretionary expenses which include food, utilities, phone and internet access, school supplies, cold-weather clothing, medical expenses, child care, and transportation costs including car payments and insurance); and
- The individual would likely be rendered homeless or be forced to move into “close quarters” because the individual has no other housing options available
The Order indicates that the Illinois Housing Development Authority is going to make a form available so that tenants may make the declaration and it is going to be a landlord obligation to provide a copy of the declaration form to a tenant prior to issuing a notice of termination of tenancy.
Wait, WHAT? So, if I have ALREADY SERVED A NOTICE AND I AM JUST WAITING TO FILE… I have to re-serve? Is this retroactive? If it is, then that is how I read this. We will have to see what happens in the courts, but if this is held to be retroactive, the Governor would have basically just made every single eviction notice served prior to today invalid (at least if the landlord doesn’t want to wait until after these orders expire).
Okay. This is something but maybe it isn’t as good as it seemed. I mean, I guess that, much like the CDC process, a landlord could challenge these declarations in court. After all, a sworn affidavit is made under oath and a falsehood on such a declaration would be subject to charges of perjury. That’s progress, although that means protracted litigation. Landlords will need to really know their facts in advance to be able to fight a tenant on these declarations.
So what else does this “relief filled” order say? The coup de grace is in Section 3 of the order which 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, unless the tenant, lessee, sub-lessee, or resident of the residential property has been found to pose a direct threat to the health and safety of other tenants or an immediate and severe risk to property
And there you have it. Even if you can file your eviction against a non-Covered Person, the Sheriff will not be enforcing it. This executive order is certainly fodder for the news media. The headline will read “Governor Grants Relief to Suffering Landlords” but it isn’t that easy. The road to an eviction will probably still be long, hard, complicated, and liekly expensive. A few cases might move along. I would have really liked it if he allowed evictions that commenced prior to the start of the government shutdown. Cook County landlords must also deal with the fact that the current version (revised October 16, 2020 and effective September 21, 2020) of General Administrative Order 2020-02 prohibits the commencement of new evictions unless they 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”.
What did the Governor do for landlords then? Well, that’s contained in section 4 which says “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.” So, you landlords have that going for you – a strongly worded admonition to tenants that, you know, they should pay their rent, maybe.
It is something in that the governor recognized that landlords are suffering, but those looking for a great amount of broad relief need to look elsewhere. The goal here is to allow evictions against high-end renters who have the means to pay but choose not to. It won’t apply in many situations, but it is a step forward for those situations.