On April 23, 2020, Gov. J.B. Pritzker issued Executive Order 2020-30, which brought hard news for landlords: commencement of any and all residential evictions is prohibited, with limited exceptions.
This Executive Order will extend for the duration of the Governor’s stay at home order, which is currently slated to expire on April 30, 2020, but pursuant to the Governor’s announcement on April 23, will be extended through the end of May by issuance of another Executive Order that we expect the week of April 27, 2020.
What does this mean for landlords over the next month?
Eviction Action and Notices
First, the Order provides that landlords may not “commence” a residential eviction action but does not clarify what constitutes “commencement” of an eviction. We are safe to say that filing the eviction lawsuit with the courts would constitute commencement, but what about serving the initial 5- or 10-day notice? Because such a notice is required to “commence” an eviction action, and establishes the court’s jurisdiction over the tenant, it is our opinion that serving a 5- or 10-day notice constitutes “commencing” an eviction action under the new Executive Order. Therefore, landlords are prohibited from serving 5 day or 10-day notices on tenants until the stay at home order expires, with limited exceptions.
Exceptions
The Executive Order states that a landlord may proceed with an eviction if the 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.” Unfortunately, however, the Order does not define these terms, nor does it specify who determines whether the tenant’s conduct falls within any of these categories.
A strong argument can be made that tenants who fall within these exceptions are those who are smoking in a non-smoking building, hoarding or creating a pest control problem due to unsanitary conditions, or brandishing or discharging a weapon at the property.
Tenants who are acting in violation of the Governor’s stay at home order would also be considered in violation of a health ordinance and posing a threat to other tenants’ health and safety. Thus, tenants who are holding parties, inviting non-essential guests into the building, or gathering in groups in the common areas would fall within the exceptions.
Exception “Gray Areas”
However, a gray area exists for conduct like creating a fire hazard by continually lighting candles – does this rise to the level of posing a “direct threat” to the health and safety of other tenants? Or having an unauthorized pet in an animal-free building or floor. This conduct affects the health of other residents who have allergies, but due to the shelter in place order, residents are unlikely to have close contact, so it’s questionable whether the animal would pose a “direct threat” to another tenant’s health.
Because there is so much room for interpretation, we recommend that if a tenant breaches the lease, for reasons other than non-payment, you contact legal counsel to discuss that matter and determine whether the conduct falls within one of the Order’s exceptions.
Exception Determination
Another issue that is overlooked in the Order: who will determine whether the tenant falls within one of the exceptions?
Does the court clerk’s office have the right to reject an eviction lawsuit because that particular filing clerk believes the conduct is not a “direct threat”? Or could a judge dismiss our case down the road, if the judge determines that the conduct does not fall within one of the exceptions and, thus, we filed in violation of the Order? Or is the Governor just asking landlords to use good judgment?
Only time will tell as to how this Order will be enforced. But if a tenant is threatening the health and safety of other residents, we do not recommend that landlords ignore the activity and hope that no other tenants are affected. The Order still requires tenants to comply with the terms of the lease and, thus, landlords should proceed with evictions within the Order’s exceptions for the well-being of other residents.
Non-Payment
With regard to cases of non-payment, while many landlords are working with financially impacted tenants and entering into rent deferments, this Executive Order prohibits landlords from proceeding against habitual delinquents or tenants who refuse to provide documentation of financial hardship to support a deferral.
Therefore, it’s important to keep track of these delinquencies and have a team ready to serve 5-day notices on June 1 (or any extension date of the Order).
We expect a barrage of eviction filings in June and resulting long delays for first court dates and continuances. If you wait until mid-June to serve your 5-day notices, you may be waiting until August for your first court date. On the other hand, if you are ready with your notices and serve them June 1, your eviction filings may “beat the crowds” and result in obtaining an eviction order more quickly.
KSN is continually monitoring the developing landscape of the current pandemic and will keep our clients abreast of the latest changes. As always, we are here to help and assist you through these difficult, unprecedented times.
If you have legal questions regarding how the extension impacts your property, do not hesitate to contact KSN. Our law firm can be reached by calling 855-537-0500 or by visiting www.ksnlaw.com.
Since 1983, KSN has been a legal resource for condominium, homeowner, and townhome associations. Additionally, we represent clients in real estate transactions, collections, landlord/tenant issues, and property tax appeals. We represent thousands of clients and community associations throughout the US with offices in several states including Florida, Illinois, Indiana, and Wisconsin.
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