‘Great period of uncertainty’ as eviction bans face expirations, court challenges
Gov. JB Pritzker has said he would phase out the state's eviction moratorium, but with COVID-19 cases rising and the expiration of eviction executive orders looming, his office did not say this week if an extension is coming. (Capitol News Illinois graphic by Jerry Nowicki)
Illinois courts prepare for greater role in mediating claims starting Sept. 1
By JERRY NOWICKI
Capitol News Illinois
SPRINGFIELD – Since March 2020, Illinois residents unable to pay rent because of the COVID-19 pandemic have been protected from eviction through Gov. JB Pritzker’s executive action, but that reality could change come Sept. 1 when executive and Illinois Supreme Court orders are scheduled to expire.
For some landlords, that’s welcome news after a 17-month prohibition, except in limited health and safety circumstances, on residential evictions. But for housing advocates and renters, it puts Illinois in a “great period of uncertainty,” with tens of thousands of renters at risk of losing their homes as court hearings begin for the first time in over a year.
Meanwhile, a new, more transmissible delta variant of the COVID-19 virus that led to those executive actions is surging, sending hospitalizations and positivity rates skyrocketing, especially among unvaccinated individuals.
Amid the rising cases and a new federal moratorium that could be in place until Oct. 3 if the courts permit it, the governor’s office did not directly respond to a Capitol News Illinois question this week as to whether he was considering issuing a new or extended moratorium.
Jose Sanchez Molina, a spokesperson for the governor, issued a statement saying it is “critically important for the administration to provide much-needed support for Illinois residents as part of the gradual phaseout of the eviction moratorium.”
The statement also noted that enforcement “has not begun as the state is diligently working to ensure that residents are aware of and apply to available aid,” and the administration “has worked alongside our courts to establish a process that includes a step to educate residents on available aid before eviction enforcement begins.”
What comes after Sept. 1 is not immediately clear, but housing stakeholders, key state agencies and court representatives reached by Capitol News Illinois said it will likely depend on the pace of distribution of aid, whether the new federal eviction moratorium is found legally permissible and whether Pritzker decides to issue a new moratorium.
But if nothing changes, many renters’ and landlords’ futures will largely revolve around the state’s court system, in particular the county and judge which are handling the eviction case, as well as the administration of a soon-to-launch court-based aid program.
The current landscape
The number of people that could be facing homelessness in Illinois is difficult to quantify.
The Illinois Housing Development Authority, which is one of the main agencies overseeing disbursement of rental aid, cited a September 2020 study from National Council of State Housing Agencies which projected Illinois renters would owe $857 million to $1.2 billion in overdue rent collectively at the beginning of this year.
Zillow, the online real estate marketplace, estimated at the end of July there were 85,613 renter households at risk of eviction in Illinois, based on an analysis of data from the Census Household Pulse Survey and the Eviction Lab’s Eviction Tracking System.
For August, at least, Illinois is in the midst of a “triage” period in which thousands of those renters and landlords are beginning court proceedings, but the governor has stayed final enforcement actions and the state Supreme Court has halted eviction trials and certain final actions until Sept. 1. Pritzker’s executive orders, which can be issued only 30 days at a time in conjunction with his disaster proclamations, expire on Aug. 21.
Those orders allow for evictions on health and safety lines, but they protect “covered persons,” which include people whose income is below certain thresholds, who are making “best efforts to make timely partial payments,” but who are unable to make their full rent or mortgage payment because of a COVID-19 related hardship.
In a phone call, Eugene Doherty, chief judge of the 17th Circuit Court and vice-chair of the Supreme Court’s COVID-19 Task Force, said the executive and Supreme Court actions represent “two independent branches of government operating in the parallel in a coordinated way.”
The challenge is connecting those facing eviction with the hundreds of millions of dollars in remaining aid that was sent to Illinois by the federal government. The courts are a “last line of defense” in mediating claims between renters and landlords, Doherty said, and the recent order requires a landlord who is initiating eviction proceedings to certify that tenants have been informed of available aid.
According to its website, IHDA has received 97,034 completed applications for the latest round of $504 million in funding through the Illinois Rental Payment Program, which launched in May. A spokesperson for the agency said it expects to help 63,000 renters through the program.
As of Aug. 9, IHDA had distributed $208.4 million to 24,065 approved renter households through IRPP, placing it third among all states, according to a database maintained by the National Low Income Housing Coalition. Distributing about 36 percent of its funds, Illinois was behind Texas (51 percent) and Virginia (42 percent).
While the IHDA application portal is currently closed, another round of $368.7 million will become available in the fall through the federal American Rescue Plan Act signed by President Joe Biden, according to a spokesperson.
In the meantime, advocates and officials stressed that aid is still available through local providers coordinated through the Illinois Department of Human Services, information on which can be found at www.illinoisrentalassistance.org. Counties with populations exceeding 200,000 may have local aid available as well.
‘Great period of uncertainty’
While the U.S. Centers for Disease Control and Prevention issued an Aug. 3 moratorium preventing law enforcement from carrying out evictions in counties with substantial or high transmission of the virus – which would apply to 99 percent of the state’s population, according to IHDA – it won’t change much in Illinois prior to the expiration of the current moratorium, according to advocates.
That federal order faces legal questions, however, as the U.S. Supreme Court indicated previously that it would block an extension of the CDC’s moratorium after its previous July expiration.
Bob Palmer, policy director at Housing Action Illinois, said his organization, which is dedicated to affordable housing solutions, is advocating for Pritzker to extend the statewide moratorium on final eviction action until at least Oct. 3, when the federal moratorium would expire.
“Obviously the hope is that all those renter households will get emergency rental assistance and those households will not get evicted,” Palmer said in a phone interview. “But obviously we don't know, so it's a great period of uncertainty right now.”
Palmer said a reason to extend the moratorium is to give time for a court-based eviction protection program to take effect. That program, run through IDHS and IHDA, is set to launch Sept. 1, and the Chicago Sun-Times reported Monday it will receive $60 million in funding.
“The program is designed to work with tenants whose landlords filed for evictions,” IDHS spokesperson Marisa Kollias said in an email. “In instances where the primary reason for eviction is rent arrears owed to the landlords, the court-based program will provide mediation or legal service as appropriate; as well as linking tenants to rental assistance program that may be able to help the tenants.”
A concern raised by landlords, however, is that not everyone covered in the governor’s eviction moratorium will be eligible for emergency housing aid.
“Covered persons” in the moratorium include individuals earning up to $99,000 annually and joint filers earning up to $198,000. But the income limit to apply for federal rental assistance equates generally to about $38,000-$52,000 for a one-person household depending on the county, as the limit is set at 80 percent of the Area Median Income, as measured by the U.S. Department of Housing and Urban Development.
Paul Arena, director of legislative affairs for the Illinois Rental Property Owners Association, said because of this, an extension would mean further uncertainty for landlords – especially those with fewer tenants and smaller footprints.
“It's urgent that we get back to some normalcy,” Arena said in a phone call. “It's gone on so long now, that it's going to have a lasting effect on the finances of some of these people. Depending on the makeup of the tenants you rent to, some may have been more affected by COVID than others. But there's landlords who have too many of their units that have gone without paying, and they're not getting the assistance fast enough. And eventually, they can only sustain that for so long.”
Role of the courts
If no changes are made to the state’s moratorium come September, Doherty said, judges will have broader discretion in eviction cases, due to a February order from the Illinois Supreme Court that “made clear” judges can “tap the brakes on the movement of a case that might otherwise be heading to judgment.”
“So I think it's going to become an individualized decision for judges in the exercise of their discretion about whether a case is making progress towards that goal, or whether it's not,” he said.
That’s important, because approximately 35,800 of the initial applications submitted to IHDA are missing one or more documents required to approve funding, such as a government-issued photo ID, evidence of past-due rent, or proof of address or household income.
IHDA spokesperson Andrew Field said the agency is reaching out to those applicants, who will have until Aug. 31 to resubmit the missing documents.
Doherty said these are the cases in which judges would likely exercise discretion.
Judges reached for this article in multiple counties generally echoed Doherty and noted their approaches are constantly evolving amid new state and federal guidance, which is sometimes in conflict.
Associate Judge Brett N. Olmstead, overseeing Champaign County’s eviction protocols, said in an email to Capitol News Illinois he spends most weeks “desperately trying to keep up with the latest executive or Supreme Court order,” and he expects Pritzker could issue a new moratorium by Sept. 1 in light of new federal action and rising COVID-19 cases.
As of now, he said, eviction cases will proceed at the same pace they did pre-pandemic in Champaign County if the moratorium ends as planned on Sept. 1.
“If the parties would like to stay the case so that an application for rent assistance can be processed, I will cooperate 100 percent,” Olmstead said in an email. “If the landlord is not interested in resolving the case that way, then I will hear the trial and, if the landlord is successful in obtaining an order of eviction, I will take up tenants’ requests to stay enforcement on a case-by-case basis.”
Olmstead said he keeps in touch with groups offering rental assistance to “keep advised of the current time frames to reasonably expect someone to be able to obtain alternative housing,” a reality that many will have to face as evictions pick back up. The county also works with Dispute Resolution Institute Inc. for mediation services which may be ordered on a case-by-case basis if landlord and renter opinions differ.
Eleventh Judicial Circuit Court Chief Judge Mark Fellheimer, from McLean County, told The Pantagaph newspaper in Bloomington that the court is still studying the CDC moratorium, but plans to “continue with what we're doing now under the Illinois plan” through September.
“It would be awfully nice if eventually the moratoriums would all sync up with one another,” he told The Pantagraph. “Once we get past the moratorium, we're back to where we were and I don't have a lot of solid answers as far as how that's going to be handled because as judges, we can't really pick sides – we're supposed to apply the law and it's a very difficult situation.”
He said in instances when a tenant has a pending application for federal aid over the past year, “almost all” McLean County landlords have agreed to go along with the application with the hope that they receive some money for rent owed.
“In fact, most of the landlords on the eviction days, they're being proactive and going out and trying to reach out to these tenants to see if they'll sign the paperwork, and the ones that have made it to court are the ones where the tenants simply have not done anything,” Fellheimer said.
Associate Judge Erick F. Hubbard, handling eviction cases for the Macon County Circuit Court, said that the court is ready to adapt to an “evolving” situation when it comes to Supreme Court and executive orders, but moving forward the eviction process will proceed even if there is a pending application for federal rental aid.
The existing orders, meanwhile, have had a clear effect on the pace of evictions, according to Macon County Sheriff Jim Root, whose office oversees eviction enforcement.
“We used to have one every day and now we have maybe a couple a month,” he said Monday in an interview with the Herald & Review in Decatur.
Kade Heather of The Pantagraph in Bloomington and Tony Reid of the Herald & Review in Decatur contributed to this report.
Capitol News Illinois is a nonprofit, nonpartisan news service covering state government and distributed to more than 400 newspapers statewide. It is funded primarily by the Illinois Press Foundation and the Robert R. McCormick Foundation.