Editor's note: This article has been revised from its initial version to now include a statement from the Illinois Rental Property Owners Association, responding to Gov. Pritzker's changes to the evictions moratorium.
As a state appeals court prepares to address the question of whether Gov. JB Pritzker can legally continue to block landlords from evicting tenants who refuse to pay rent, in the name of fighting the spread of COVID-19, the governor has tweaked his so-called evictions moratorium for the next 30 days, giving a bit more leeway to landlords.
On Friday, Nov. 13, Pritzker announced he was again extending a statewide ban on evictions for another 30 days, as he has every month since March, when he first declared a statewide disaster due to the onset of the COVID-19 pandemic.
However, now Pritzker said landlords should have a few more tools in their kit for dealing with tenants he said may have taken advantage of the governor’s pandemic response, simply to choose not to pay rent.
Pritzker now said the blanket evictions ban would only apply to tenants who earn less than $99,000 per year, individually, or less than $198,000 per household. Further, tenants would now be required to provide landlords with forms stating they can't pay their rent because of a substantial loss of income or because the pandemic has caused them to suffer a sharp increase in household expenses.
A spokesman for a state association representing landlords said they were "grateful that Governor Pritzker has addressed our most significant concern regarding the eviction moratorium."
"The revisions to the moratorium will address the abuse by tenants who could pay rent but have not, while still protecting renters who have a legitimate COVID related hardship," said Paul Arena, director of legislative affairs for the Illinois Rental Property Owners Association. "In addition, the changes made with this extension will allow housing providers to address behavior related lease violations that are unrelated to the virus."
Pritzker's move to alter the evictions ban comes as lawyers for the governor and a group of Illinois rental property owners are wrapping up briefing and preparing for arguments before a state appeals panel, as the landlords challenge the extent of Pritzker’s power. The IRPOA is not an official party to that lawsuit, though they have spoken in support of the legal action.
Landlords had sued Pritzker this summer, as it became apparent the governor was unwilling to relent on his orders, issued using emergency powers he claimed under state disaster laws and the Illinois state constitution, to block landlords from going to court to secure eviction orders removing non-paying tenants from apartment buildings and rental homes.
Landlords had accused Pritzker of overstepping his authority, and using his emergency powers to essentially unconstitutionally seize their properties without compensation. The landlords said the evictions ban would leave them paying for their tenants to live in their properties, sometimes rent-free.
Further, they argued Pritkzer’s actions unconstitutionally stripped them of their rights to protect their property rights in court, while also trampling on the power of the courts, transgressing the line between the state’s executive and judicial branches of government.
The landlords have warned of “ripple effects” throughout the economy caused by the evictions ban, as lost rental income will lead many landlords – particularly, smaller landlords who may own only one or a handful of properties – into insolvency. They warned that this would lead to unpaid property taxes and mortgage foreclosures throughout the state.
Should those properties enter foreclosure, they said tenants could ultimately be left homeless and neighborhoods gutted.
The landlords are represented in the action by attorneys James V. Noonan and Solomon Maman, of the firm of Noonan and Lieberman Ltd., of Chicago, and attorney Jeffrey Grant Brown, of Chicago.
Pritzker has argued the ban is justified as a response to the pandemic, because it allows tenants – and particularly low income households – to remain in their home while the pandemic rages, reducing the spread of the disease.
When the case landed before a Will County judge, he sided almost completely with Pritzker, saying it did not matter if the evictions ban causes “economic devastation.”
He said Pritzker’s ban did not, actually, take the landlords’ property, or forever block them from accessing the courts to assert their property rights. Rather, it amounted only to a “delay” in exercising those rights during a “public health emergency.”
Pritzker has said from the start the moratorium was only “temporary,” and was not meant to allow tenants who can pay rent to simply choose not to.
However, the governor has extended the evictions ban for eight consecutive months, and, as coronavirus cases have surged in recent weeks, he has yet to indicate when it might end.
Following the Will County ruling, the landlords appealed the decision to the Illinois Third District Appellate Court.
Briefs in that proceeding have been filed by both sides in the weeks since.
In reply to the appeal, the Illinois Attorney General’s office, representing Pritzker, has again asserted their position that the governor has the power to ban evictions for any reason, for as long as he believes is needed to fight COVID-19.
They particularly noted the state’s Emergency Management Agency Act gives the governor the power to “control ingress and egress to and from a disaster area, the movement of persons within the area, and the occupancy of premises therein.”
Further, they noted the law gives the governor the power to marshal and control state resources – including the state’s courts and law enforcement, which would be needed to enforce evictions - during a time of disaster.
They said these aspects of the law, in addition to the governor’s authority under the Illinois state constitution, work together to grant him the power to prohibit evictions.
The evictions bans, they said “are a commonsense means limiting the spread of COVID-19 by avoiding the physical interactions associated with being evicted and, in the worst cases, becoming homeless. And the moratoria are not permanent; the landlords will be able to recoup unpaid rent, as the moratoria do not relieve tenants of those obligations.”
Despte those contentions in their brief filed last month in the Third District Appellate court, Pritzker moved on Nov. 13 to place some limits on the evictions ban.
In that case, the Supreme Court denied their appeal, allowing a federal appellate court’s ruling to stand, affirming Pritzker’s authority to regulate even worship services.
However, shortly before that ruling, the governor had suddenly softened his position, as he declared religious observance to be an “essential” activity. He further replaced rules that had been applied to religious assemblies with public health “guidelines,” intended to help churches and other religious assemblies worship more safely and reduce the potential spread of COVID-19.
The Supreme Court cited that change the next day in their order denying the appeal. The change to "guidance" was also cited by the U.S. Seventh Circuit Court of Appeals.
In the evictions ban litigation, the governor's moves to limit the moratorium only to higher earning tenants, and to require all tenants to provide at least some proof of economic hardship, lines up with contentions presented by the landlords in their court filings. Landlords had claimed Pritzker's evictions ban went far beyond nearly every other similar moratorium imposed across the country, including the moratorium ordered by the federal Centers for Disease Control. Those other bans, they said, were designed in ways to protect tenants whose ability to pay has been harmed by job losses, illnesses or other factors directly attributable to COVID-19.
On Saturday, Nov. 14, Paul Arena, at the IRPOA, issued the following statement, in response to the governor's new actions, and responding to questions from The Cook County Record:
"The Illinois Rental Property Owners Association is grateful that Governor Pritzker has addressed our most significant concern regarding the eviction moratorium. From the beginning of the pandemic it has been the position of our association that renters who are experiencing a legitimate financial hardship because of COVID-19 should not become homeless. Our complaint was based on the fact that our members have been expected to bear the financial burden of protecting housing for affected renters.
"The revisions to the moratorium will address the abuse by tenants who could pay rent but have not, while still protecting renters who have a legitimate COVID related hardship. In addition, the changes made with this extension will allow housing providers to address behavior related lease violations that are unrelated to the virus.
"While we remain concerned that housing providers are still expected to bear the cost of providing housing for affected renters the scope of the problem has been limited. We hope the Governor will continue to work on this issue and provide financial relief to housing providers who are not receiving rent payments because of COVID."