Residential options under COVID19 restrictions – 2021

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Following the COVID19 outbreak in March of 2020, various government actors determined that it would be necessary to intercede to slow or eliminate displacement of tenants through the eviction process. What began with a state executive order providing a temporary halt on evictions has been renewed each month in Illinois. The Illinois Supreme Court has also announced various rule changes concerning state eviction proceedings. Federal agencies also pronounced various added restrictions – first to both properties supported by federal funds and then to all residential tenants generally. However, these laws and restrictions have been modified nearly every other month – and many individuals may not understand all aspects of the current restrictions.

RENT REMAINS DUE: Nothing in state or federal directives eliminates the obligation to pay rent; in fact, each Illinois executive order states specifically that these delays do not impact tenant obligation to pay rent. These actions are not a blanket exemption for rent – any rent that comes due and is not paid during these restrictions remain a valid debt and will be due once the restrictions are removed. There are various programs that have been established to assist tenants in providing funds to pay rent to avoid massive past-due situations.

EVICTIONS CAN PROCEED: Under both state and federal directives, evictions can proceed under certain circumstances. The current exceptions to these limitations involve tenants allegedly causing damage or danger to other tenants or property.

However, even in situations not involving alleged damage or danger, evictions can proceed if the tenant does not qualify for the delay protections of current guidelines. In order to qualify for these protections, a tenant must complete a declaration (which the landlord must ensure is served) and return it in a timely fashion. This declaration requires the tenant to state several facts under penalty of perjury: examples of those facts include an inability to make a full rent/housing payment due to a COVID-19 related hardship and the tenant has made his/her best efforts to make timely partial payments that are as close to the full payment as circumstances permit. Unless a tenant can state truthfully that the tenant has made timely partial payments (at least) as best he/she can, the tenant would not be qualified to enjoy the protections of these state and federal directives.

In recent state Supreme Court directives, additional certifications must be filed with any eviction case. Should a landlord have reason to challenge a declaration submitted by a tenant, the landlord may file a motion to contest the declaration as part of the suit. In his most recent continuation of these restrictions, Gov. Pritzker has stated a declaration filed untimely is allowed to stay an eviction proceeding – however, it remains unclear whether a landlord’s challenge of the allegations in that declaration can avoid this new stay.

OTHER ACTIONS ARE AVAILABLE BEFORE THESE ORDERS ARE LIFTED: Even if a tenant qualifies for protection under the state or federal directives and continues to reside in the property without payment of rent, the stay of an eviction action does not end possible options. There is nothing in these directives that prohibit a landlord from filing a civil lawsuit against the tenant for unpaid rent and other charges due under the lease. A lease is a contract between the parties, and while possession of the property may not be a remedy available immediately to a landlord, the landlord can obtain a judgment for all rent, late charges, other charges, court costs (and perhaps attorneys fees) against the tenant, THEN proceed to collect that judgment from tenant assets by whatever means are available then.

It is reasonable for a landlord to provide a tenants behind in rent the declaration form established by the Illinois Housing Development Authority, with proof of service similar to any landlord notice (5 day, etc.). If the tenant does not respond or meet those qualifications, you would be allowed to begin eviction proceedings (consistent with all current requirements); a tardy declaration could still be challenged if factually improper. Even if eviction is stayed, civil suit for all monetary damages under your lease remains a possible option.