CBA Record March-April 2021

Evictions During and After Covid-19 By Alexander Passo T he economy has suffered during the Covid-19 pandemic, affecting households as well as businesses.

Many tenants have had difficulty making their monthly lease payments, leading to material defaults. To alleviate the pressure of eviction at this time and to protect ten- ants, a patchwork of acts and ordinances has gone into effect. However, the protec- tions are not absolute, and exceptions exist even for residential leases. Furthermore, the pause on evictions will not last forever, and there will most likely be an avalanche of new filings. The purpose of this article is to provide a framework for how to handle an eviction whether it occurs during or after the pandemic. Protected Tenants Governor Pritzker’s Executive Order 2020- 72 placed a moratorium on residential evictions for tenants who experienced economic hardships due to Covid-19. However, the moratorium is not absolute, and exceptions exist. The moratorium does not apply to non-covered individuals. The moratorium applies only to tenants who earn less than $99,000 as a single filer and no more than $198,000 as joint filers. Nor does the moratorium apply if the tenant poses a direct threat to the health and safety of other tenants, or if the tenant’s actions put the property in question at an immediate and severe risk. Attorney Certification In response to the Governor’s executive orders imposing a moratorium on most residential evictions, the Illinois Supreme Court issued Administrative Order M.R. 30370, which requires that each complaint for an eviction be accompanied with a certificate of compliance with the Gover- nor’s executive order. An example of the form of the certification is appended to M.R. 30370. Eviction Notices Before filing an eviction suit, the landlord must provide the tenant with a written

Filing the Complaint After proper service of the appropriate notice, the landlord may file suit. The content of the complaint requires that the pleader include: (a) a statement that they are entitled to the possession of the premises, (b) a description of the premises, and (c) an allegation that the defendant has unlawfully withheld the possession of the premises. If filing in Cook County, forms are available at the Clerk of the Circuit Court of Cook County’s website. The landlord should specifically name all lessees and/or occupants of the premises and unknown occupants. A failure to name unknown occupants in a possession order may lead to the sheriff refusing to execute the possession order. The complaint should include the demand for possession of the property and, if applicable, for unpaid rent. However, it is inappropriate to include other, non- germane claims in the eviction complaint, even though they may relate to the prem- ises. For example, if there is a guaranty at issue, it is inappropriate to name the guarantor. See Win-City Inn, Inc. v. Hahne Enterprises, Inc. , 37 Ill.2d 133 (1967). Service of the complaint is like in any other action, with one key distinction: notice of the lawsuit may be provided by posting if the tenant has been evading service. To serve a tenant by posting, the landlord must file an affidavit indicating that they have been unable to serve the tenant with reasonable diligence. They should itemize their attempts at service.

notice of the default and the intent to file an eviction action. If a lease is in effect and the tenant has failed to pay rent, the landlord must provide a 5-day notice to the tenant and an opportunity to cure. Within the notice, the landlord should specify the amount of rent that must be paid in full in order to cure the default. If there is a valid lease and the landlord is evicting the tenant for any reason other than non-payment, they must provide a 10-day notice. If the landlord is evicting a holdover tenant or if there is an oral lease, the landlord must provide a 30-day notice. Be advised that in the latter case, if you serve the 30-day notice just after the lease renewed, you will be required to wait another month before you may file your eviction matter. For example, if an oral lease renewed on February 1, and notice was served on February 5, the eviction action could not be filed in March – filing would have to wait until April. Service of Eviction Notices Service of a notice of an intent to file an eviction is procedurally similar to serving a lawsuit. The notice may be delivered to a tenant personally or to someone who is 13 years or older and who resides at the property. A key difference is that notice may be mailed by certified or registered mail with a return receipt. See 735 ILCS 5/9-211. To be safe and avoid potential evasion by the tenant, personal service is recommended.

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