New Eviction Executive Order: November 2020

Saul Ewing Arnstein & Lehr LLP
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Executive Order 2020-72 Allows Limited Resumption of Eviction Lawsuits for Collection of Unpaid Assessments by Illinois Condominium and Common Interest Community Associations.

Since the onset of the COVID pandemic, Governor Pritzker’s Executive Order issued on April 23, 2020 has prohibited the commencement of any eviction actions, thereby preventing associations from pursuing collection of assessments through the eviction process.  But on November 13, 2020, Gov. Pritzker issued new Executive Order 2020-72 (click here for a copy) which may finally provide associations with some relief.  While still prohibiting evictions against owners (or their tenants) who qualify as a “Covered Person,” associations may now take action against those unit owners unless the owner (or any other occupant of the unit subject to eviction) establishes they meet the criteria required to qualify for protection.

Guidance

Illinois law provides that the owner of a unit in a condominium or common interest community association may be evicted (or lose the right to collect rents from a renter) due to the owner’s failure to pay condominium or HOA common expense assessments.  The filing of actions pursuant to the Illinois Eviction Act has always been the preferred (and most effective) way to collect unpaid unit owner assessments.  In light of concerns relate to the COVID pandemic, Governor Pritzker prohibited the commencement of any such actions, including the issuance of a 30-day Notice and Demand letter.  However, this new Order, issued on November 13, 2020, changes the blanket prohibition and now allows commencement of residential eviction actions against anyone who is not a “Covered Person.”  As defined in Executive Order 2020-72, a “Covered Person” is a “tenant, lessee, sub-lessee or resident of a residential property” who provides their “landlord, the owner of the residential property, or other person or entity with a legal right to pursue an eviction or possessory action” with a declaration under penalty of perjury (a “Covered Person Declaration”) that the person meets various hardship criteria.  Those criteria include statements that the individual: (1) anticipates earning less than $99,000 in 2020 annual income, or receipt of a CARES Act payment, (2) has the inability to make full payment due to a COVID-related hardship, (3) is making best efforts to make full payments, and (4) that if evicted, the person would likely be homeless or be forced to live in a “congregate or shared living setting." 

In order to give persons facing possible eviction an opportunity to assert “Covered Person” status, Executive Order 2020-72 requires that the party seeking eviction provide a blank Covered Person Declaration “prior to the issuance of a notice of termination of tenancy.” At Governor Pritzker’s request, the Illinois Housing Development Authority has prepared a Covered Person Declaration form (click here for a copy) as well as a Frequently Asked Questions document concerning Executive Order 2020-72 (click here for a copy).

Recommendations and Considerations

After nearly 7 months of forced inaction, associations are once again able to use the Eviction Act to pursue collection of past-due assessments, but only if some additional steps are taken to ensure that the unit owner (and any other unit occupant subject to eviction) is not a “Covered Person”. We are prepared to assist associations with understanding and complying with these new procedures.

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