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Last week we discussed the status of the pandemic-induced moratoria on residential lease eviction lawsuits filed by landlords.
Why are such government or court moratoriums important to know? Can’t landlords simply change the locks or evict their tenants from the rented property if the tenants fail to pay the rent owed or otherwise violate the terms of their lease?
No sir, no way.
There is one thing under Illinois law called implied eviction, that homeowners are not allowed to do. Indirect eviction is a serious and substantial act committed by an owner with the intention of depriving the tenant of the legitimate enjoyment of the premises.
The landlord need not have the express intention of depriving the tenant in this way, since a person is presumed to want the natural and probable consequence of his act.
Without a court order to do so, changing a tenant’s locks to prevent the tenant from entering the leased premises is constructive eviction, as it clearly shows an intention to deprive the tenant of the enjoyment of the premises. This is applicable for commercial as well as residential leases.
A constructive eviction can occur even if changing the lock is not the problem. When the inventory is such as to make the place uninhabitable (through no fault of the tenant), it may be an implicit eviction.
The main examples are problems with the water, electricity or heat supply that the owner is required to provide.
A landlord cutting off the power to force tenants out is just as illegal as changing the lock in self-help.
If a tenant was implicitly evicted, the tenant owes no rent for the period of the implied eviction, which may mean for the remainder of the term of the lease. However, the tenant will still be liable to the landlord for any debt incurred up to the time of the implied eviction.
If a tenant has been locked out, the tenant could sue the landlord for a court order requiring the landlord to let the tenant return to the premises (giving the tenant a new key, in effect). Also under state law and possibly applicable local ordinances, changing locks without a court order on tenants could subject the landlord to cash compensation to the tenant to punish the landlord. This is true even if the tenant owes the landlord money under the lease.
Which brings us back to why moratoriums on residential eviction prosecutions are essential for homeowners to repossess.
It is only through the court system that a landlord can legally force a tenant out of rented commercial or residential real estate. The onus is on the owners to prove to a court why they are entitled to possession. Tenants can raise defenses like a constructive eviction.
If the landlord wins the eviction lawsuit and the tenant does not voluntarily leave when the possession order goes into effect, the county sheriff becomes involved in overseeing the renewal of possession.
Thus, governor and CDC moratoria and / or Illinois Supreme Court administrative rules regulating the filing or prosecution of residential eviction suits have been the focus of homeowners (and tenants) radar.
Unfortunately, the pandemic has clouded the radar a lot these days.
Brett Kepley is a lawyer with Land of Lincoln Legal Aid Inc. Send your questions to The Law Q&A, 302 N. First St., Champaign, IL 61820.
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