By Attorney Sarah Albert
As mask mandates come to an end, so do certain regulations put into place by Governor J.B. Pritzker that were aimed at relieving stressors related to housing insecurity during the global pandemic. The Illinois Rental Payment Program (ILRPP) deployed $1.1 billion in funding to renters and landlords in an effort to prevent evictions because so many people were without work, ill, or otherwise found it more difficult to make ends meet due to COVID-19. HB 2877 was also signed into law, which most notably allows for eviction records to be sealed so long as tenants meet certain criteria:
(1) the interests of justice in sealing the court file outweigh the public interest in maintaining a public record;
(2) the parties to the eviction action agree to seal the court file;
(3) there was no material violation of the terms of the tenancy by the tenant; or
(4) the case was dismissed with or without prejudice.
735 ILCS 5/9-121.5 (b). (Emphasis added).
This law is set to be repealed on August 1, 2022. In its place, the courts will revert to the practice of evaluating eviction records on a case-by-case basis, applying either a mandatory or discretionary standard:
Mandatory sealing of court file. The court will seal an eviction record relating to an action brought against an occupant who would have lawful possession of the premises but for the foreclosure of a mortgage on the property. See 735 ILCS 5/9-121 (c) and 735 ILCS 5/15-1701 (h)(6).
Discretionary sealing of court file. The court may order that a file in an eviction action be placed under seal if the court finds that the plaintiff's action is sufficiently without a basis in fact or law . . . that placing the court file under seal is clearly in the interests of justice, and that those interests are not outweighed by the public's interest in knowing about the record. See 735 ILCS 5/9-121 (a). (Emphasis added).
In practice, the main distinction between the language of HB 2877 and ILCS 5/9-121 is that the former allows courts slightly more discretion with respect to sealing eviction records. As the text of the law provides, a motion to seal an eviction record will be considered if any of the aforementioned reasons apply; that means tenants can make arguments for sealing that bring fairness to the forefront. Also considered are latent resolution between a former landlord and tenant, new facts coming to light that paint a fuller picture of the tenancy, or the fact that the case was dismissed. For the time being, HB 2877 allows courts to consider a more holistic understanding of the circumstances that lead to, and may follow, a residential eviction proceeding, especially those that occurred during the COVID-19 pandemic.
After July 31, 2022, courts are certainly permitted to consider a multitude of factors when ruling on motions to seal. However, with respect to discretionary sealing, tenants must be able to show the landlord was without basis in law or fact when the eviction was sought (which is a high burden, as it necessitates that some sort of error existed or occurred in the original eviction proceeding), and that the public's interest in being able to access this information, for whatever purpose, outweighs any argument for fairness. And this can be a high burden as well, as most landlords check an applicant's public records for previous evictions in order to make an informed decision about whether or not to lease a space.
As a result, tenants who have a history of evictions – no matter how old – may find that their ability to secure convenient and affordable housing is negatively impacted, and they are burdened with this public record forever. CTM Legal Group is happy to assess your eviction records in order to determine if they apply under the current law. We may be able to submit and argue motions to seal on your behalf, and submit proposed orders that ensure your records go under seal, meaning they become invisible to potential landlords, mortgage companies, and other credit unions. We encourage anyone who thinks they can be benefitted by HB 2877 to contact CTM Legal Group before the summer is over, to take full advantage of this COVID-era law.