Building owners have legal remedy to seek unpaid rent
Q: I have a tenant who has not paid rent since last November. I think he still has the same job he had when he first came in so I don't think he is any worse off than he was before COVID-19. He claims he is broke and can't pay the rent. He seems to know what is going on with the moratorium and is aware there's not much I can do to evict him.
As the owner of the property, am I completely helpless here? Does he get to stay for free indefinitely? Of course, I'm still writing checks each month for my mortgage and taxes. No one seems to be too worried about that.
A: As you might imagine, owners around the state have been complaining about the blanket moratorium on evictions. The most common complaint is that many owners believe their tenants are capable of paying rent but choose not to pay knowing the owner's primary defense against nonpayment of rent has been temporarily eliminated.
Last November, Gov. Pritzker responded to these complaints by modifying the moratorium to provide at least some protections for owners. Under these changes, only renters that earn less than $99,000 per year ($198,000 per year for joint filers) are protected by the moratorium. Tenants unable to pay are now required to submit a form declaration certifying they are unable to pay rent due to a substantial loss of income or increase in out of pocket costs due to COVID. The form is available through the Illinois Housing Development Authority website.
The only other exceptions to the moratorium are emergencies where a 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.
The rent obligation is not affected by whether or not a tenant is properly exercising his or her rights under this executive order. Nothing in the executive order prevents an owner from proceeding against a tenant for outstanding rent. Only possession of the property is impacted by the moratorium. The monthly obligation continues to accrue.
As for what you can do today, obtain the declaration form from the Illinois Housing Development Authority website, send to your client and demand it be completed and returned to you. If the tenant falls outside the income parameters, you may proceed with the eviction, though absent health or safety issues, some, likely most county sheriffs, will continue to refuse to carry out the eviction.
Note: For all of you out there renting with one or more roommates, a situation came up with a family member that has legal implications to all those who sign leases with one or more other parties. One of three roommates wished to vacate their apartment with two months remaining on the lease. The vacating roommate offered to find someone to sublet for the two months. So far, so good. Problem (or potential problem) is this:
What if subletting roommate decides at the end of the two months that he/she likes it there and doesn't want to leave. He/she is now a holdover tenant and, depending on the terms of the lease, may be accruing a rent obligation at 1½ or 2 times the prevailing rent. Compounding the situation is that the owner of the building likely will not be able to evict the holdover tenant for some time.
Why is this a problem, you ask? As far as the owner is concerned, this is a breach of the lease. And the owner doesn't look at this as a breach by the subtenant; the owner looks at this as a breach by the parties the owner is in contract with, the three original tenants. This is important because virtually every lease contains a joint and several liability clause. This means all tenants are fully 100% responsible for any financial obligations under the lease.
So, your worst nightmare, as one of the two honest tenants who paid their rent each month and vacated the apartment at lease termination, is that the subtenant refuses to leave, accrues 1½ to 2 times the rent obligation each month and it is months before the owner can have the holdover tenant evicted. When the time comes that owners may proceed with evictions, they file their case against all three original tenants, demanding possession and months of rent at holdover rates. Meanwhile, the holdover tenant disappears and is never heard from again.
Just something to be aware of when the subject of subtenants arises.
• Send your questions to attorney Tom Resnick, 910 E. Oak St., Lake in the Hills, IL 60156, by email to tom@thomasresnicklaw.com or call (847) 359-8983.