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Verella’s Round-Up: Chicago COVID-19 Eviction Ordinance

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Well, I’ve thought long and hard to find any good news for Illinois housing providers and the situation just gets bleaker. Most of you have been advised, ad nauseum, of the Illinois moratorium on filing and enforcing residential evictions now extended through the end of the year, with additional extensions likely.

A couple of points regarding the Illinois moratorium:

  1. It applies only to residences, so you may continue to file commercial evictions for offices, stores, garages, etc. I mention this because I receive several calls about this daily.
  2. You may still file a residential eviction lawsuit for “emergency situations,” which are defined as any tenant who engages in criminal activity (you should have an arrest), threatens the health or safety of other residents, damages or poses an immediate and significant risk of damage to property, or who violates building or health codes.

All of the “emergency evictions” must have convincing documentation to have the court rule that it is, in fact, an emergency and exempt from the eviction moratorium. Therefore, if you have such a situation in your building, it is urgent that you obtain police reports regarding the disturbance of peace, criminal damage to property, building code violation, etc., as well as obtaining written complaints from building residents.

Also ask the residents to file complaints with the Alderman’s office regarding the violating tenant. We just had such an emergency eviction and the Alderman sent an agent to the court hearing to testify regarding the number of complaints their office received about the defendant. This is the evidence you need to successfully prosecute a residential “emergency eviction” under this moratorium.

I urge you all to call and email the Governor and his office and stress two points:

  1. The incredible length of time it takes to evict a tenant in Cook County – 3 to 8 months before COVID to evict a tenant, primarily due to the protracted timeframe required by the Cook County Sheriff’s Office in both serving summonses and enforcing court orders. During COVID, it is currently taking two months just to obtain a hearing date. If landlords are allowed to file eviction suits on November 16th, it would still take about four months just to get to trial (as the Sheriff has a service rate of about 25%) and the courts have limited hearings. If the Sheriff had to enforce that eviction order, it took an additional 3-4 months before COVID. Therefore, the State’s prevention of even filing such suits will grossly extend the eviction process. Instead of a manageable stream of evictions which the courts could have readily handled, the State has created a tsunami that will completely overwhelm the courts when it eventually hits. It has also endangered the viability of rental housing.
  2. You have held on for eight months, with no assistance and no relief in sight. As most buildings are heated by the landlord, Illinois tenants are now in danger of not receiving heat during this winter because landlords can’t pay their bills. Threats of city citations or fines are useless in the face of pending bankruptcy by hundreds of property owners. What is the Governor’s answer for that?

That’s the situation with the State of Illinois. What about the federal government, which has now decided to become involved in landlord-tenant matters?

The President issued an executive Order through the CDC stating that, “a landlord, owner of a residential property, or other person with a legal right to pursue eviction or possessory action, shall not evict any covered person from any residential property in any jurisdiction [excepting only U.S. Samoa] during the effective period of the Order [12/31/20]”. The “covered person” is defined as “any tenants, lessees or residents of residential properties [this includes condo owners who fail to pay assessments, occupants in foreclosed properties purchased by investors, civil trespassers] who provides to their landlord, the owner of the residential property, or other person with a legal right to pursue eviction [managing agent]…a declaration under penalty of perjury indicating that:

  1. The individual has used best efforts to obtain all available government assistance for rent or housing.
  2. 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 was not required to report any income in 2019 to the IRS, or received a 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.
  5. 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.

Penalties: The penalties for violating the Federal order are criminal and punitive. A person violating the Order is subject to a fine of up to $100,000 – if the violation does not result in a death – or one year in jail, or both; the fine is $250,000 if the violation results in a death and/or one year in jail. The fines and damages for corporations or “organizations” is even higher: up to $200,000 per event if the violation does not result in a death, or $500,000 per event if it does result in a death. (No, I didn’t forget the decimals!) This federal order is enforced by “federal authorities and cooperating State and local authorities.” Interpretation of the federal law is that it only bans residential evictions based on non-payment of rent; Illinois bans all residential evictions for any reason. Again, the federal Order exempts emergency evictions based on the same situations described above for Illinois.

One final concern is the definition of “evict” and “eviction” in the Order, which “means any action by a landlord, owner of a residential property…to remove or cause the removal of a covered person from a residential property. This does not include foreclosure on a home mortgage.” There are hot and heavy arguments among eviction attorneys whether or not serving a demand notice for unpaid rent constitutes an action that would “cause the removal” of a tenant. With criminal penalties such as these, who is going to be the first to take that chance? What’s to prevent a tenant from back-dating such an affidavit?

Remember that the damages accrue because of a landlord’s action against a “covered person” – which is a tenant who has provided you with a written “sworn declaration under penalty of perjury” (such an attestation has specific required language) and the federal Order provided a sample affidavit. Therefore, if your tenant has not provided you with any such document, he is not a “covered person” and not protected under the federal Order.

However, because the criminal damages are so punitive, I strongly suggest that no Five-Day Notice or other demand for rent be served on any tenant without a dated and signed letter from the landlord stating that, as of this date, the landlord and no agent of the landlord has received any statement or declaration from the tenant pursuant to the CDC Order dated September 4, 2020, nor any written statement whatsoever providing a reason as to why the tenant is not paying rent. (Of course, this must be true.) Will this stop a tenant from back-dating such an affidavit? Perhaps not, but with your dated statement it makes it more unlikely and they would have to prove you received it.

Of course, any Chicago tenant who has already informed you that he’s been financially impacted by COVID is subject to the Chicago COVID Impact ordinance and I’m sure you’ve already offered those tenants installment payment plans. Please just be aware that this federal Order is effective through the end of the year and the penalties are brutal, so think long and hard before you even attempt to serve a demand for unpaid rent right now.



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