UPDATE TO EVICTION MORATORIUM
EXTENDED TO 9/18/2021
FOR PROPERTIES NOT INCLUDING CHICAGO

On August 20, 2021, Governor Pritzker entered Executive Order 2021-19 which reissues and extends Executive Order 2021-13, as amended by Executive Order 2021-14, through September 18, 2021. This Executive Order keeps the eviction moratorium at a status quo. Recall our update last month:

As of August 1, 2021, the new Executive Order allows landlords to file against a Covered Person (i.e. a resident who has returned the Declaration) without having to contest the Declaration. If a landlord files suit as of August 1, 2021, and obtains service on the defendant who appears for the return date, the Judge can continue the case for status for a date after September 1, 2021. This is in lieu of the landlord, as plaintiff, having to file a motion to challenge the veracity of the Declaration. Once the stay of eviction proceedings is lifted (as of September 1, 2021), the eviction process should continue as it did pre-COVID.

PLEASE NOTE: If an application for rental assistance is pending with the Illinois Housing Development Authority (“IHDA”), then you cannot proceed with any eviction efforts.

For Chicago properties, the Chicago eviction moratorium, which is only applicable to non-payment of rent cases, extends 60 days past the expiration of the Illinois State eviction moratorium.

Please contact Amy Olson at amy@keaycostello.com with any questions.

 

EVICTION MORATORIUM UPDATE FOR OWNERS OF MULTI-FAMILY PROPERTIES WITH FEDERALLY-BACKED MORTGAGES

The Federal Housing Finance Agency (FHFA) announced on July 28, 2021 that owners of multi-family buildings that have federally-backed mortgages now must provide 30 days’ notice of termination of tenancy based upon non-payment of rent instead of five (5) days. This requirement is effective until further notice. See link to press release below. https://www.fhfa.gov/Media/PublicAffairs/Pages/FHFA-Announces-Multifamily-Tenant-Protections.aspx

Our office will provide updates on this requirement as the FHFA releases them.

[blockquote]

EVICTION MORATORIUM – STATUS

As of August 1, 2021, under the Illinois eviction moratorium, landlords can proceed with the filing of eviction cases against Covered Persons for non-payment of rent; however, courts are prohibited from holding trials, hearing dispositive motions or entering judgments and Eviction Orders against Covered Persons through September 1, 2021. Landlords must continue to serve the Declaration upon residents prior to serving notices of termination of tenancy for any reason except where the landlord is alleging the resident’s conduct is a direct threat to the health and safety of other residents or an immediate and severe risk to property. Evictions against non-Covered Persons can proceed. REMINDER: Serve the Declaration as you would a 5-Day Notice. Once served, wait five (5) days before serving the Declaration.
[/blockquote]

IMPORTANT NEWS FOR LANDLORDS OUTSIDE OF CHICAGO CITY LIMITS EVICTION MORATORIUM AMENDED BY GOVERNOR


On November 13, 2020, Governor Pritzker entered Executive Order 2020-72 which amends the eviction moratorium. Effective immediately, landlords may file residential eviction lawsuits against tenants unless the tenant is deemed a “Covered Person” under the Executive Order. The Executive Order defines a Covered Person as someone who submits a Declaration, under oath, stating that s/he meets all four (4) parameters below:

  1. Expects to earn no more than $99,000 in annual income for 2020, or nor more than $198,000 if filing a joint tax return; was not required to report to IRS income in 2019; or received an Economic Impact Payment under Section 2001 of the CARES Act;
  2. Unable to make full payment to Association due to COVID-19 related hardship such as: substantial loss of income, loss of hours, or increase in out of-pocket expenses which directly relates to hardship;
  3. Is making “best efforts to make timely partial payments…as close to full payment as the individual’s circumstances may permit” and considering their non-discretionary expenses; AND
  4. Likely to become homeless or “force individual to move into and live in close quarters” with others.

The Executive Order requires that the tenant must be provided a copy of the Declaration prior to service of a Notice of Termination of Tenancy (i.e., 5-day Notice). A copy of the Declaration can be downloaded here. If you have tenants who are delinquent in rent, we recommend that you deliver the Declaration to the delinquent tenant and allow them 7 – 10 days to return it. If the tenant does not return it, the landlord can serve a Notice of Termination of Tenancy. If the tenant returns the Declaration and you would like our office to review it to determine whether it complies with the Executive Order, please email it to amy@keaycostello.com. We charge $50 per review.

Even if a tenant is deemed a Covered Person, the Executive Order clearly states they are not relieved of their financial obligation to pay rent. Additionally, the Executive Order allows a landlord to evict a Covered Person when that “person [or owner’s tenant] poses a direct threat to the health and safety of other tenants or an immediate and severe risk to property.”

Keep in mind that county sheriff departments are still not allowed to evict residential tenants/owners unless they are “a direct threat to the health and safety of other tenants or an immediate and severe risk to property.” Nonetheless, this new Executive Order will allow landlords to begin the process of obtaining possession of a home or unit for unpaid rent.

Commercial evictions are no longer subject to the eviction moratorium.


This article is being provided for informational purposes only.  This article does not constitute legal advice on the part of Keay & Costello, P.C. or any of its attorneys.  No client or any other individual or entity should rely on this article as a basis for any action or actions without confirming the advice.  If you would like legal advice regarding any of the topics discussed in this article and/or recommended procedures for your entity or business going forward, please contact our office. 

IMPORTANT NEWS FOR ASSOCIATION CLIENTS
EVICTION MORATORIUM AMENDED BY GOVERNOR


On November 13, 2020, Governor Pritzker entered Executive Order 2020-72 which amends the eviction moratorium. Effective immediately, associations may file a residential eviction lawsuit against owners unless the person is deemed a “Covered Person” under the Executive Order. In most cases this will allow associations to again seek possession for unpaid assessments unless the owner submits a Declaration. The Executive Order defines a Covered Person as a person who submits a Declaration, under oath, stating that s/he meets all four (4) parameters below:

  1. Expects to no more than $99,000 in annual income for 2020 or nor more than $198,000 if filing a joint tax return; was not required to report to IRS income in 2019; or “received an Economic Impact Payment under Section 2001 of the CARES Act”;
  2. Is unable to make full payment to Association due to COVID-19 related hardship such as: substantial loss of income, loss of hours, or increase in out of-pocket expenses which directly relates to hardship;
  3. Is making “best efforts to make timely partial payments…as close to full payment as the individual’s circumstances may permit” and when also considering their non-discretionary expenses (such as food, utilities, internet access, school suppose, medical expenses); AND
  4. Is likely to become homeless or “force individual to move into and live in close quarters” with others.

Even if an owner is deemed a Covered Person, the Executive Order clearly states they are not relieved of their financial obligation to pay assessments. Additionally, the Executive Order allows an association to evict a Covered Person when that “person [or owner’s tenant] poses a direct threat to the health and safety of other tenants or an immediate and severe risk to property.”

Keep in mind that county sheriff departments are still not allowed to evict residential tenants/owners unless they are a “direct threat to the health and safety of other tenants or an immediate and severe risk to property.” Nonetheless, the new Executive Order will allow associations to begin the process of obtaining possession of a home or unit to collect unpaid assessments.

Our office will begin prosecuting eviction cases. Upon receipt of a new collection matter from the Association, we will send an initial collection letter with the Declaration enclosed. If an owner fails to return a proper Declaration and/or does not dispute the collection matter, we will send 30-Day statutory demand for possession. If an owner properly submits a Declaration, we will proceed with a small claims action.

Please let our office know if you have any questions or if you want to discuss taking action on delinquent accounts.


This article is being provided for informational purposes only.  This article does not constitute legal advice on the part of Keay & Costello, P.C. or any of its attorneys.  No client or any other individual or entity should rely on this article as a basis for any action or actions without confirming the advice.  If you would like legal advice regarding any of the topics discussed in this article and/or recommended procedures for your entity or business going forward, please contact our office. 

COMPREHENSIVE REVIEW FOR DELINQUENCIES

Is your office finding the day-to-day demands of managing property have, in a short period of time, changed dramatically as we all navigate these unique times?  This short-term shift in the demands on our time presents opportunities to address matters for our clients that may not always be high on the priority list, but which are critical to the long-term strength and viability of a community.   Cross checking the association’s delinquent accounts against foreclosure and bankruptcy records in order to determine the collectability of those accounts can be a daunting task.  Fortunately, our firm can help.  We now offer a comprehensive review of an association’s entire delinquency report. 

Our office charges $650.00 for this service, which includes a review of all delinquent accounts against foreclosure and bankruptcy records and a recommendation of options available to the association on each account.  The board can then use our review and recommendations to make informed decisions on how to proceed with each account.  In some situations, an old balance previously viewed as uncollectable might be available through post-judgment collection.  In other situations, a balance must be deemed uncollectable due to a bankruptcy discharge.  Whatever the particular circumstance of each account, the review will give the board the tools it needs to fulfill its obligation to reduce assessment delinquencies and promote the financial stability and creditworthiness of the community.

Let us help you review your community’s accounts. We are here to help you resolve those pesky delinquencies and clean up your accounts receivable. 

The Illinois Condominium Property Act empowers a board of managers, “to impose charges for late payment of a unit owner’s proportionate share of the common expenses, or any other expenses lawfully agreed upon, and after notice and an opportunity to be heard, to levy reasonable fines for violation of the declaration, by-laws, and rules and regulations of the association”.   765 ILCS 605/18.4(l). 

Similarly, the Illinois Common Interest Community Association Act states, “The board shall have the power, after notice and an opportunity to be heard, to levy and collect reasonable fines from members or unit owners for violations of the declaration, bylaws, operating agreement, and rules and regulations of the common interest community association”.  765 ILCS 160/1-30(g).

However, before a fine can be imposed, there are four important aspects to  the process: violation of an existing rule and regulation (or provision in declaration or by-laws); notice of the violation to the owner; an owner’s opportunity to be heard; and, the fine amount.

A large part of Keay & Costello’s practice involves collections for condominium and homeowner associations.   While assessments may be the most important debt to collect for any association, fines constitute another important collectable debt. 

An association should always be aware of its own rules and regulations.  This may seem obvious, but sometimes associations levy fines to accounts for conduct that does not actually violate an existing rule and regulation.  This is problematic.   Associations should not be demanding payment for a fine for a violation that does not exist.  Additionally, including such fines will  delay the collection process. 

The next step for an association is to send written notice of the violation to the owner.  The notice should advise the owner of the violation, the time period to correct the violation, and the consequences for failing to correct the violation.  Associations frequently deviate from their own rules and regulations regarding the fine notice procedure.  It is best practice for an association to consult its own fine notice procedure prior to issuing notice of the violation to the owner. 

An important aspect of the notice of violation, is “an opportunity to be heard”.    Both the Illinois Condominium Property Act and the Common Interest Community Association Act mandate that “notice and an opportunity to be heard” be granted to the accused unit owners BEFORE the issuance of a fine.  As previously stated, an association should consult with its own fine notice procedure regarding opportunity to be heard.  It is generally best practice to give an owner a certain amount of time to contact the association, or management company, in order to dispute the violation fine.  Another approach for an association is to set a hearing for any violation fine at the next regularly scheduled board meeting. 

Lastly,  an association needs to be aware of the fine amount.  Most associations’ rules and regulations contain what is referred to as a “fine schedule”.  Sometimes associations levy fines that do not comport with the fine schedule.   For example, if the rules and regulations state a warning letter is the first communication to be sent after the first rule violation, it will difficult for an association to justify levying a fine on the first violation.  As previously stated, this causes delay in collection since the fine amounts will need to be adjusted in accordance with the fine schedule. 

If your association has any questions about the fine levying process, or desires to update its rules and regulations regarding the fine process, please feel free to contact our office and one of our attorneys will be happy to assist you.

 

CONDOMINIUM UNITS IN FORECLOSURE DURING A RISING REAL ESTATE MARKET

In 2017, Illinois had the fourth highest rate of foreclosure filings in the United States. While the overall number of foreclosures being filed is decreasing, foreclosures continue to present issues for condominium associations throughout the state.

Generally speaking, a mortgage foreclosure of a condominium unit is a straight forward process.  When a condominium unit owner fails to pay his or her mortgage, the bank files a lawsuit asking that the condominium unit be sold at public auction and that the funds from the sale be applied to the unpaid mortgage.  Over the past decade, it has been a near certainty that a condominium unit sold at foreclosure auction would fetch a price less than what was owed to the bank.  While the condominium association was named as a defendant in the foreclosure action, there was typically no need for it to expend time and money participating, as there was no money left over from the foreclosure sale to go towards unpaid common expenses.

Now, however, this is not always the case for condominium associations.  Rising home values have resulted in an increasing number of condominium units being sold at foreclosure auction for an amount greater than what the bank is owed.  This results in a “surplus,” which is to be used to pay other lien holders, including condominium associations, which have a lien for unpaid common expenses pursuant to Section 9(g)(1) of the Illinois Condominium Property Act and their respective Declaration.

Unfortunately, it’s not always as easy as just asking a court to turn over the surplus funds to the Association.  Assuming the condominium association was named as a defendant in the lawsuit (as Section 9(g)(1) of the Illinois Condominium Property Act requires), by the time the association realizes a surplus exists it is likely the association has been held in default for failing to take action once served with the foreclosure suit.  Some judges have found that a condominium association that has been held in default is not entitled to recover unpaid common expenses from the surplus funds.  Even more frustrating, it is possible these surplus funds will be turned over to the former owner of the condominium unit, despite the fact that this owner failed to pay their proportionate share of the common expenses during their period of ownership!

Beyond preserving its right to collect any surplus funds, there is another reason for a condominium association to strongly consider participating in the foreclosure of a unit.  Section 9(g)(4) of the Illinois Condominium Property Act provides that the purchaser of a condominium unit at a foreclosure sale (or, in the event the unit is purchased by the foreclosing bank, the subsequent purchaser) must pay any unpaid common expenses for the unit which became due during the 6 months “immediately preceding institution of an action to enforce the collection of assessments.”  In short, while the foreclosure of a condominium unit extinguishes the association’s lien for unpaid common expenses, the association is still able to collect 6 months of unpaid common expenses provided it instituted an action to collect them.  One option a condominium association has is to institute their collection action by filing a counter-claim against the owner in the foreclosure case itself.  While instituting a collection action may seem onerous, the Illinois Condominium Property Act also affords a condominium association the right to collect the attorney’s fees and costs form this future owner, along with the 6 months of unpaid common expenses.

To summarize, increasing home values are causing a dramatic increase in frequency and amount of surplus funds being available after foreclosure sales.  In the event a condominium association fails to appear and file a responsive pleading in the foreclosure, it could be precluded from collecting unpaid common expenses from the surplus finds.  Further, and regardless of whether the foreclosure sale results in a surplus, a condominium association is able to collect 6 months of assessments, attorney’s fees, and costs from a future owner, provided that it has instituted an action to collect these unpaid common expenses.  This means that, except in limited circumstances, a condominium association should strongly consider filing an appearance and responsive pleading when served with a foreclosure, as doing so will entitle it to recover unpaid common expenses in the event of a surplus, obtain 6 months of assessments, attorneys, fees, and costs from a future owner of the unit, or both.

IT’S NEVER A BAD TIME TO REVIEW YOUR DELINQUENCIES

With the budgeting and annual meeting season in the rear-view mirror and with the opening of pool season still a couple of months away, now is the time to review your association’s assessment delinquencies.  There’s never a bad time to review delinquencies, but this is a particularly good time to determine if the owners are all carrying their fair share of the common expense.  I have never understood the thought that any percentage of owners who don’t pay as being acceptable or expected.  Setting an acceptable percentage of 10 or 10% of owners who are delinquent is really an arbitrary action.  Why should 20% of the owners be allowed to not pay their fair share?  The perfect storm of a mortgage foreclosure action coupled with a bankruptcy discharge could ultimately render an owner’s debt uncollectable, but absent the confluence of these events, very few delinquencies are uncollectable.

Recent Illinois Supreme Court decisions in Spanish Court Two and 1010 Lake Shore have recognized and respected condominium association lien rights.  Associations need to take advantage of the myriad of tools available to collect delinquent assessments.  Actions for possession under the Forcible Entry and Detainer Act, lien foreclosure and small claims actions all provide great opportunity to make associations whole.  While the landscape of community association governance has changed substantially over the past few years, one truth remains:  Diligent and aggressive assessment collection is a necessity.  Collection of assessments is the foundation of a board’s fiduciary obligation.  Associations cannot function properly when not fully funded.  In the competitive residential real estate market in which we now find ourselves, buyers are becoming more discriminating.  The financial health of a community is a much more substantial factor in determining whether a particular unit is desirable for purchase.  If a prospective owner has the choice between purchasing a unit in a well-funded community as opposed to one with substantial delinquencies and a looming large special assessment, what decision will this individual likely make?

Boards and management should not struggle with assessment collection.  A comprehensive assessment collection policy that affords the association’s counsel the opportunity to move files diligently without the need to constantly consult with the client will result in a greater success rate on delinquent files.  Regular reviews of an association’s delinquencies is also a must.  Boards and management should be reviewing their delinquencies minimally on a quarterly basis.  Our office also welcomes the opportunity to assist boards and management in reviewing delinquencies and making recommendations as to which accounts should be pursued and whether any debts should be written-off as uncollectable.  The jobs of board members and managers are complicated enough without having to be deeply engaged in the assessment collection process.  Utilize your professionals and allow your attorneys to take this important element of managing an association off your plate.  Don’t ignore your delinquencies.  The law provides great opportunity to minimize and eliminate them.

 

This article is being provided for informational purposes only.  This article does not constitute legal advice on the part of Keay & Costello, P.C. or any of its attorneys.  No association, board member or any other individual or entity should rely on this article as a basis for any action or actions.  If you would like legal advice regarding any of the topics discussed in this article and/or recommended procedures for your association going forward, please contact our office.

APPELLATE COURT PROVIDES SOME CLARITY ON SIX MONTHS RULE

Under Section 9(g)(4) of the Illinois Condominium Property Act, a foreclosure purchaser, other than a mortgagee, or a third-party who purchases a foreclosed unit from a mortgagee must pay to the association six months of common expenses attributable to the prior owner, as long as the association initiated collection against that prior owner.  Since its addition to the Act, this so-called “six months” rule has had relatively few opportunities for review by appellate courts.  However, the First District Appellate Court recently considered what parties are considered “mortgagees” under the Act and thus may pass on the responsibility for the six months to a subsequent third-party purchaser.  Specifically, in Wing Street of Arlington Heights Condominium Association v. Kiss the Chef Holdings, LLC, the court ruled a mortgagee’s wholly owned subsidiary is also a mortgagee under the Act and therefore is not liable for the six months; the six months would become due once that subsidiary sold the unit to a third-party.

Broadly speaking, a mortgagee is the lender or other party that holds a mortgage on a piece of real estate.  In Wing Street, Village Bank & Trust foreclosed its mortgage on a condominium unit.  VBT Wing Street Condo, LLC, a wholly owned subsidiary of Village Bank & Trust, purchased the unit at the judicial sale.  After VBT sold the unit to Kiss the Chef Holdings, LLC, the association sued Kiss the Chef for unpaid assessments.  One of the issues in the case was whether VBT was a subsequent purchaser under 9(g)(4), in which case it would be responsible for the six months, or whether VBT was a mortgagee, in which case Kiss the Chef would then be the subsequent purchaser responsible for the six months.

            In deciding whether VBT was a mortgagee for the purposes of 9(g)(4), the appellate court looked to the Illinois Mortgage Foreclosure Law, which defines a mortgagee as “(i) the holder of an indebtedness or obligee of a non-monetary obligation secured by a mortgage or any person designated or authorized to act on behalf of such holder and (ii) any person claiming through a mortgagee as successor.”  735 ILCS 5/15-1208.  Using this definition, the court determined that, since VBT was acting on behalf of Village Bank & Trust when it purchased the unit at the judicial sale, VBT was a mortgagee and therefore not responsible for the six months under 9(g)(4).  As a result, Kiss the Chef was the subsequent third-party purchaser under 9(g)(4) and therefore responsible to pay the six months of unpaid common expenses.

            Because Wing Street involved a bank’s subsidiary, the court did not make any ruling as to whether other entities that commonly receive deeds following foreclosure sales, such as HUD, Fannie Mae, and Freddie Mac, are also considered mortgagees under 9(g)(4).  However, the court did leave some guidance, specifically that the proper definition to apply is the one found in the Illinois Mortgage Foreclosure Law.  If one of these entities acts on behalf of the lender or is a successor to the lender, it will likely also fit the definition of mortgagee and thereby not bear responsibility for the six months.  Given this is an area of law that has yet to be fully fleshed out by the courts, it is imperative that associations note the six months amount on post-foreclosure account statements in order to ensure the association will eventually recover the full amount to which it is legally entitled.

On December 3rd, the Illinois Supreme Court issued an opinion confirming the holding of the First District Appellate Court in the case of 1010 Lake Shore Association vs. Deutsche Bank National Trust Company. If you are reading this article, you probably know the facts of this case already. If not, in a nutshell, the case involved a foreclosed unit at 1010 Lake Shore that Deutsche Bank purchased at a foreclosure auction. The foreclosed-out owner owed a substantial balance to the Association at the time the foreclosure sale took place. Upon taking ownership of the unit, Deutsche Bank failed to pay any assessments. The Association ultimately sued Deutsche Bank in circuit court and the court entered judgment against Deutsche Bank for the pre-foreclosure balance. Deutsche Bank appealed the circuit court’s ruling and on appeal the First District Appellate Court held and the Illinois Supreme Court subsequently confirmed that under Section 9(g)(3) of the Illinois Condominium Property Act, a foreclosure purchaser must pay common expenses beginning the month after the sale. The Appellate Court and Supreme Court also held that if a foreclosure purchaser fails to pay assessments beginning the month after the foreclosure sale, the association’s lien for common expenses not paid by the foreclosed-out owner is not extinguished and the foreclosure purchaser then becomes obligated to pay the entire pre-foreclosure balance.

What does this mean for condominium associations and how should associations and management handle unpaid balances on foreclosed units?

  • Actively monitoring foreclosures continues to be important. Those associations that work with our office know how frequently we track foreclosure cases for our clients. We have consistently advised our clients the importance of knowing the status of pending foreclosure actions. The holding in this case makes knowing whether a unit has recently been sold at foreclosure auction more critical than ever as not being on top of the status of a sold unit could result in an association losing out on its right to collect pre-foreclosure amounts.
  • Don’t write off balances. Writing off a pre-foreclosure balance without consulting with counsel could result in an association walking away from money it is legally entitled to recover.
  • If the purchaser of a unit at foreclosure (a lending institution, a quasi-governmental agency, or a third-party investor) fails to timely pay the assessment due the month after the foreclosure sale is conducted, turn the account over to association counsel for collection. Do not wait 60, 90 or 120 days after confirmation of the foreclosure sale to turn the account over if there is a pre-foreclosure balance and the new owner has not paid any post-foreclosure assessments.
  • Once an account has been turned over to counsel for collection, do not accept any payments without first discussing the matter with counsel. Accepting a payment will most likely preclude an association from collecting any portion of the pre-foreclosure balance.
  • It does not matter if an association has been included as a defendant in a foreclosure action. The obligation to promptly pay post-foreclosure assessments applies to all foreclosure actions, whether the association has been named as a defendant or not. Further, the Supreme Court also appeared to state that if an association is not named as a defendant in the foreclosure action, the association’s lien is not extinguished even if post-foreclosure assessments are paid.

Because Deutsche Bank did not pay any post-foreclosure assessments, the Supreme Court did not address the timing of when a foreclosure purchasers’ ability to extinguish the pre-foreclosure lien by paying the post-foreclosure assessments expires. The only statement the Supreme Court made on the issue is Section 9(g)(3) “provides an incentive for prompt payment,” but it did not include any definition of what “prompt” means. Therefore, the Court did not impose any set deadline for payment. Accepting a payment, regardless of when the payment is made, most likely eliminates an association’s ability to collect the pre-foreclosure balance. Without any additional guidance from the Court, the best recommendation we can make is to be aggressive in turning accounts over post-foreclosure if the accounts have a pre-foreclosure balance and once accounts are turned over for collection, do not accept any payments.

While the General Assembly has not been responsive to efforts made by those who advocate on behalf of condominium associations to afford some additional relief related to the loss of assessment revenue that usually accompanies a foreclosure, the Illinois Supreme Court has unanimously recognized the obligation of foreclosure purchasers to promptly make payments upon taking ownership of units. If a foreclosure purchaser fails to promptly make post-foreclosure assessment payments and if an association acts diligently, it will put itself in position to recover pre-foreclosure amounts it may have believed were lost once ownership of the unit transferred.