Illinois: New Law Affecting Possession
by Jill Rein
Pierce & Associates, P.C. - USFN Member (IL)
A bill was
signed August 26, 2008, affecting tenant rights to possession of
foreclosed property in Illinois. The new law is effective immediately.
It substantially increases the time frame in which to obtain possession
from tenants occupying the property after a foreclosure is complete. A
copy of the new statute in its entirety can be viewed here. Below
is a summary.
There are two ways to obtain possession from tenants after the
foreclosure is complete in Illinois: either a separate forcible detainer
action or a supplemental petition for possession in the foreclosure
proceeding can be filed.
Under the new law, before a forcible detainer action can be filed
against the tenants, they must first be served with a copy of a
“Notice of Intent to File Forcible Entry and Detainer
Action.” Then, 90 days must pass after service of this notice
before a forcible detainer complaint can be filed. This new provision
adds at least 90 days to the time frame to obtain possession from
tenants after the foreclosure is complete.
On the other
hand, if a supplemental petition for possession is filed in the
foreclosure proceeding (which can be done any time up to 90 days after
the order confirming possession has been entered) to obtain possession
against tenants, a notice of hearing of the petition must be served on
the tenants (the hearing must be within 21 days of the date of service).
Further, under the new law, if the tenants:
▪ are current on their rent,
▪ are not provided timely notice
of to whom and where the rent is to be paid, or
▪ where the tenants have made
good-faith efforts to make rental payments in order to keep
any order of
possession granted must give the tenants 120 days possession following
the notice of the hearing on the petition or possession through the term
of their lease, whichever is shorter. The new provisions of this section
virtually ensure tenants will be given 120 days or the duration of their
petitions are not usually practical or time efficient as unknown
occupants cannot be named in them (which can be done in forcible
detainer actions), and the time frames are often impossible to comply
with due to court scheduling issues. Accordingly, the process this
author’s firm uses to evict tenants after the foreclosure is
complete is the forcible detainer action, which now will take an
additional 90 days to conclude. The forcible detainer action, however,
will still be more effective and time efficient than a supplemental
petition in most cases.
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